§ 29-2817 — Writ; return by person detaining; contents

Nebraska § 29-2817

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

In every case in which a writ of habeas corpus has been allowed, the person to whom the writ is directed shall file a return in which he shall plainly and unequivocally state the following: (1) Whether he has or has not the party in his custody or power, or under restraint; (2) if he has the party in his custody or power, or under restraint, he shall set forth at large the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant, or other process, if any, upon which the party is detained; and (3) if he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state particularly to whom, at what time, for what cause and by what authority such transfer was made.

Legislative History

Source: G.S.1873, c. 58, § 371, p. 808; R.S.1913, § 9263; C.S.1922, § 10292; C.S.1929, § 29-2817; R.S.1943, § 29-2817. Annotations: Sufficiency of return raised but not decided. Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807 (1961). Where failure to comply with this section was not challenged in trial court, objection thereto could not be raised on appeal. In re Application of Bruno, 153 Neb. 445, 45 N.W.2d 178 (1950). Party to whom writ is directed must set forth in return authority to hold and detain applicant for writ. In re Application of Robinson, 150 Neb. 443, 34 N.W.2d 887 (1948). A person to whom a writ of habeas corpus is directed makes response to the writ, not to the petition therefor. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944). In the return to writ of habeas corpus, facts must appear which warrant restraint of party detained. In re Application of Niklaus, Niklaus v. Holloway, 144 Neb. 503, 13 N.W.2d 655 (1944). When return to writ shows relator to be in custody of officer against whom it is directed and no facts appear warrant restraint of respondent, it is duty of court to order his discharge. Rose v. Vosburg, 107 Neb. 847, 187 N.W. 46 (1922). In making return to writ of habeas corpus, officer detaining petitioner is required to set out copy of warrant of arrest and detention. Chandler v. Sipes, 103 Neb. 111, 170 N.W. 604 (1919). In making return by officer, copy of process should be set out or sufficient reason assigned for failure. Urban v. Brailey, 86 Neb. 217, 125 N.W. 543 (1910), affirming 85 Neb. 796, 124 N.W. 467 (1910).