Ex parte Nye

8 Kan. 99

• Court: Supreme Court of Kansas
• Decided: January 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Kingman, C. J.:

This is an application for the writ of habeas corpus. It must be refused for two reasons, either of which is sufficient.

I. It appears by the petition that the applicant is in custody by virtue of process issued on a final judgment of a court of competent jurisdiction; and this fact precludes an inquiry into the legality of the judgment or process by which he is imprisoned, and would prevent this court from discharging him from custody: § 671, ch. 80, Gen. Stat.

II. The petition avers that the applicant for the writ is in custody by virtue of an order of arrest issued by a justice of the peace. It is alleged that the affidavit on which the decision of the justice was based contains no facts to warrant the arrest of the applicant. No copy of the affidavit is furnished; no statement of its character is made. The statement that it does not contain facts to warrant the arrest is a conclusion of law, and not a statement of facts. Before this court will bring a man from a distant county enough should appear iu the application for the writ for the court to form some judgment on the case; and this the statute contemplates

The writ must be refused.

All the Justices concurring.