« PreviousContinue »
complaint of appellant alleges: "That on or stantial compliance with all its essential about the 4th day of June, 1906, at the city requirements.” As stated in the case of of Reno, Washoe county, Nev., the plaintiff Malter V. Falcon Mining Co., 18 Nev. 213, and defendant entered into an agreement, 2 Pac. 51, "whatever is made necessary to whereby the plaintiff agreed to furnish the the existence of the lien must be performed, labor and material and make certain altera or the attempt to create it will be futile. tions and repairs upon the premises of the substantial adherence to the terms of the defendant known as 'No. 144 Sierra Street,' statute in the notice of the lien is indislot 7, block 5, city of Reno, Washoe county, pensable. The omissions, if any, in the nostate of Nevada, and the defendant agreed tice and claim as recorded, cannot, in esto pay the plaintiff therefor the prices as sential particulars, be aided by any averset forth in the plaintiff's statement and ments in the complaint or by extrinsic eviclaim of lien, amounting to the sum of $221. dence." Bertheolet V. Parker, 43 Wis. 5.1; 93, a copy of which statement and claim of Santa Monica L. & M. Co. v. Hege, 119 Cal. lien is hereto attached, marked 'Exhibit A, 379, 51 Pac. 555; Malone v. Big Flat, etc., and made part of this complaint”-and fur Co., T6 Cal. 578, 18 Pac. 772; Reed v. Norther avers that all of said work and ma ton, 30 Cal. 590, 26 Pac. 767, 27 Pac. 426; terial were furnished in accordance with Wagner v. Hansen, 103 Cal. 101, 37 Pac. 195. the ternis thereof. Respondent denies the The object of a lien, in addition to nomaterial allegations of the complaint, and tifying the owner of what is claimed and il vers that the work agreed upon in said con securing the lienor's rights, is to apprise tract was to be for no greater sum than $190, prospective purchasers, or persons who might specially denies that respondent fully per desire to become interested in the property, fornied the conditions of the contract en of the nature of the claim against the proptered into between them, and in the way of erty, and under what conditions, if they acit further and separate and distinct defense quire the property, they must assume the to said action sets forth: “That * * same. Our statute provides, among other plaintiff commenced the work of painting things, that a lien must contain a stateand repairing the said house and fence, but ment of the terms, time given and condithat the said work was done in a careless tions of the contract." Section 3885, Comp. and negligent manner so as to be of little Laws. No one can definitely say from the or no benefit to the said dwelling house and vague statement in the lien purporting to set fence; that plaintiff painted portions of the forth the conditions of the contract upon said house with two coats of paint, and
which this lien is based whether or not the other portions of the house with only one
house was to receive one, two, or three coats coat of paint; and that the said house and of paint, or whether the "outside work on fence still remain incomplete." The terms
the house" called for the shingling of the ind conditions required to be set forth in roof, the construction of an additional porch. the lien therefore become of vital importance.
or the building or repairing of a fence or The lien in question contains the following
walk around the premises, and would not be item: “Outside work on house and painting
sufficiently explicit to a prospective purchaser of inside blinds, $190," by which it is at. of the property, or to any one who might detempted to set forth in the said lien terms
sire to become interested in the same, whethand the conditions or things to be done for
er, if he assumed the lien, he would secure the money agreed upon in the contract on
the value called for by the contract upon which this lien is based and asked to be
which the lien was based. Wherever an exforeclosed. A statutory lien can only legal
press contract is entered into, as was the ly exist when it is perfected in the manner
case in the present action, the terms and
conditions of such contract should be subprescribed by the statute creating it, and, being a statute of a remedial nature, we be
stantially set out in the lien filed sufficientlieve should be liberally construed, and that
ly clear to inform any reasonable person of
what work was intended to be performed or a substantial compliance with the law is sufficient to create a valid lien. Skyrme v.
material furnished as originally agreed on Occidental M. & M. Co., 8 Nev. 221; Hunter
between the parties. v. Truckee Lodge, 14 Nev. 28; Lonkey V.
The vague statement in the lien heretofore Wells, 16 Nev. 274; Maynard v. Ivey, 21
quoted, attempting to state the terms and Nev. 245, 29 Pac. 1090. There are, however,
conditions of the contract, does not substancertain plain requirements prescribed by the
tially coniply with this essential provision of
the statute, and thereby renders the lien statute which are legally essential to the Validity of every lien and without which it
void. Nothing in this judgment shall be cannot exist or be enforced. As is well stat
construed as affecting the rights of the
parties, except in so far as it relates to the ed by Phil. Mech. Liens, $ 9, a lien is "a
validity of the lien. remedy given by law which secures the pref
The judgment of the lower court is aference provided for, but which does not
firmed. exist, however equitable the claim may be, unless the party brings himself within the TALBOT, C. J., and NORCROSS, J., conprovisions of the statute, and shows a sub cur.
(29 Vev. 385)
exceed one day for every two dollars of the Ex parte TANI. (No. 1,721.)
fine, or in that proportion." Section 4418: (Supreme Court of Nevada. July 30, 1907.) "If the judgment be imprisonment, or a fine CRIMINAL LAW – SENTENCE - ERRONEOUS IN and imprisonment until it be satisfied, the dePART-EFFECT.
fendant shall forthwith be committed to the On conviction of a felony, the sentence im
custody of the proper officer, and by him deposed was within the discretion vested in the district court as to the amount of the fine and
tained until the judgment be complied with." the time of alternative imprisonment in the
Section 4646: "If the fine be not paid the event the fine was not paid, and was erroneous court may order the defendant to be imonly in that it declared that such alternative imprisonment should be in the state prison,
prisoned one day for each two dollars of the whereas, under the express provisions of Comp.
fine not paid." Section 2267: "Whenever Laws, $ 2267, it should have declared that the any prisoner, under conviction for any crimsame should be in the county jail. IIeld, in inal offense, shall be confined in jail for any habeas corpus proceedings, that such direction as to the place of imprisonment might be re
inability to pay any fine, forfeiture, or costs, jected as surplusage, and did not vitiate the
or to procure sureties, the district court, upentire sentence.
on satisfactory evidence of such inability, [Ed. Note.-For cases in point, see Cent. Dig. may, in lieu thereof, confine such person in vol. 15, Criminal Law, $$ 3320, 2528, 3318.] the county jail, at the rate of two dollars Application by S. Tani for a writ of habeas
per day, until the fine, forfeiture, or cost so corpus against the warden of the state pris
imposed shall have been satisfied." Section Denied, and the warden of the state
3761 provides that it shall be the duty of the prison directed to deliver petitioner to the
judge hearing the writ of habeas corpus, "if sheriff of Washoe county, to be by him de
the time during which such party may be letained in the county jail for the remainder
gally detained in custody has not expired, to of the term of imprisonment imposed by his
remand such party, if it shall appear that he sentence, unless the part of the fine remain
is detained in custody by virtue of the final ing unsatisfied be sooner paid.
judgment or decree of any competent court
of criminal jurisdiction, or of any process isBenj. Curler, for petitioner. R. C. Stod
sued upon such judgment or decree, or in dard, Atty. Gen., for the State.
cases of contempt of court"; and section
3762 that: “If it appears on the return of TALBOT. C. J. Defendant was indicted the writ of habeas corpus that the prisoner for the crime of assault with intent to kill. is in custody by virtue of process from any He entered a plea of guilty of assault with a court of this territory, or judge or officer deadly weapon with intent to inflict upon thereof, such prisoner may be discharged, in the person of another a bodily injury, where any one of the following cases, subject to the no considerable provocation appears, and the restrictions of the last preceding section : sentence of the court was that he be fined First-When the jurisdiction of such court or $1,000, and, in the event the fine be not paid, officer has been exceeded. Second—When that he be imprisoned in the state prison for the imprisonment was at first lawful, yet by a period of 500 days, or one day for each and some act, omission, or event, which has takevery $2 ot the fine not satisfied. No pay. en place afterwards, the party has become rent being made, he was committed to the entitled to be discharged. Third-When the custody of the warden of the state prison, process is defective in some matter of suband now asks to be released by writ of ha stance required by law, rendering such probeas corpus, asserting that the district court cess void. Fourth-When the process, though was without jurisdiction to confine him in proper in form, has been issued in a case not that institution, and that therefore the sen allowed by law. Fifth—When the person tence is void.
having the custody of the prisoner is not the Section 4701 of the Compiled Laws of Ne person allowed by law to detain him. Sixth vada provides: "An assault with a deadly - Where the process is not authorized by any weapon, instrument, or other thing, with an judgment, order, or decree of any court, nor intent to inflict upon the person of another by any provision of law." a bodily injury, where no considerable pror On behalf of petitioner, it is urged that ocation appears, or where the circumstances under section 2267 the district court was of the assault show an abandoned and malig- without jurisdiction to order the defendant nant heart, shall subject the offender to im- | imprisoned in any place other than the coun. prisonment in the state prison not less than ty jail, and that the direction in the judgone year, or exceeding two years, or to a fine ment that he be confined in the state prison, not less than one thousand nor exceeding five in lieu of payment of the fine, was unauthorthousand dollars, or to both such fine and ized and rendered the whole judgment void. imprisonment.” Section 3988: “A felony is Of the cases relied upon by him the first four a public offense punishable with death, or by following support this contention: In Ex imprisonment in the territorial prison."
parte Page, 19 No. 291, the sentence of 10 tion 4113: "A judgment that the defendant years for grand larceny was excessive, and it pay a fine may also direct that he be impris was held that the court had no power to reoned until the fine be satisfied, specifying the duce the term of imprisonment SO as to extent of the imprisonment, which shall not bring it within the statutory limit, and the
prisoner was discharged. In Ex parte Cox, the person, and pronounces a severable judg. 32 Pac. 197, 3 Idaho (Hasb.) 530, 95 Am. St. ment or sentence, one part of which is auRep. 29, an Idaho case, defendant was con thorized by law, and another distinct part victed of an assault with a deadly weapon which is not authorized, the prisoner will likely to produce great bodily harm, and not be discharged on habeas corpus, when sentenced to confinement in the state prison it does not appear that he has undergone the for the term of five years, when the statu full punishment imposed by the legal portion tory penalty was imprisonment not exceeding of the sentence. It was said that, as to two years, or a fine of $5,000, or both. The that part which the court had the power to judgment was declared void, and the peti. pronounce, the sentence was valid upon protioner released. In Ex parte Kelly, 65 Cal. ceeding for habeas corpus; that errors which 154, 3 Pac. 673, it was held that the portion rendered the judgment merely voidable and of the judgment requiring the performance not absolutely void could not be inquired of labor on the streets was not authorized, into under such a writ (citing In re Prime, that the judgment was a unit, and that this 1 Barb. [N. Y.) 340; State v. Shattuck, 45 portion of it, being without the jurisdiction N. H. 211; Ross' Case, 2 Pick. 171; Ex parte of the court, made the whole void. Ex parte Watkins, 3 Pet. (U. S.] 201, 7 L. Ed. 650), Bernert, 62 Cal. 524, is of similar effect. and that, if the judgment is in excess of that
But the views of the courts regarding the which the court rendering it by law had the proposition involved are as numerous and power to pronounce, such judgment is void varied as the different liquors from the magi for the excess only (citing Brook's Case, 4 cian's bottle. The most of the decisions, and Leigh (Va.) 669; Murry's Case, 5 Leigh (Va.) especially those more in consonance with rea 724; Hall's Case, 6 Leigh (Va.) 615, 29 Am. son and justice, are averse to the discharge Dec. 236; People v. Liscomb, 60 N. Y. 560, 19 of oriminals who have been duly convicted Am. Rep. 211; Feeley's Case, 12 Cush. (Mass.) when the application for their release is by 598; Ex parte Shaw, 7 Ohio St. 81, 70 Am. petition for habeas corpus based on some er Dec. 55; People v. Markham, 7 Cal. 208; ror, omission, or mistake in the sentence People v. Baker, 89 N. Y. 467). At page 43 which might have been cured or corrected by of 26 W. Va., in regard to the Missouri case writ of error or appeal. As we shall see, the (Ex parte Page) relied upon here by petitionSupreme Court of California has not always er and cited above, it was said: “But, it been consistent in its opinions, and the doc that case could be regarded as decided upon trine advanced by the foregoing cases has principle, it must be disapproved, since it been severely criticised by the Supreme is not only contrary to the general rules Courts of the United States, of Pennsylvania, hereinbefore stated, but it is in positive conand Massachusetts, and is contrary to the flict with numerous other and seemingly betweight of authority.
ter considered decisions of courts of other In Ex parte Max, 44 Cal. 580, it was said: states. In re Petty, 22 Kan. 277; Ex parte "The application for the writ of habeas cor Parks, 03 U. S. 18, 23 L. Ed. 787; People v. pus made here proceeds upon the ground Jacobs, 66 N. Y. 9; People v. Liscomb, 60 N. that the judgment, under the circumstances Y. 559, 19 Am. Rep. 211; People v. Baker, 89 appearing, is not merely erroneous, but is N. Y. 460." void in the absolute sense, and so affords no In People v. Cavanagh, 2 Parker, Cr. R. authority to the warden of the prison to de (N. Y.) 662, release was sought from an errotain the petitioner. We are of opinion, how neous sentence and imprisonment. It was ever, that the position cannot be maintained. held that there was no force in the point The indictment upon which the judgment is raised that the defendant should have been founded is sufficient in all respects. The of. sentenced to the penitentiary and not to the fense of which the petitioner was convicted county jail; that, if it were error to desigwas one within the scope of the indictment, nate the county jail as the place of confineand the judgment one which the county court ment, it could not be reviewed and corrected had the authority to render upon the appear in a habeas corpus proceeding, and was no ance and plea of the petitioner. These condi ground for his discharge. tions constitute jurisdiction. All others in In Ex parte Bond, 9 S. C. SO, 30 Am. Rep. volve questions of mere error, and the latter 20, the prisoner had been convicted of an ascannot be inquired into upon writ of habeas sault with intent to kill, and sentenced to corpus, but only upon proceedings in error. confinement at hard labor in the penitenThe obvious distinction between the office of a tiary. The court held that the offense was writ of error or an appeal, on the one hand, not punishable by imprisonment in the state and a writ of habeas corpus upon the other, penitentiary; that the sentence was therefore was not presented, but was overlooked in erroneous, but not void, and refused to disEx parte Ah Cha et al., 40 Cal. 426, which cbarge the petitioner on habeas corpus. was a writ of habeas corpus heard and de In People v. Kelly, 97 N. Y. 212, upon a termined at chambers, and that case must in conviction for assault in the third degree, that respect be overruled.”
the sentence was to imprisonment at hard In Ex parte Mooney, 26 W. Va. 36, 53 Am. labor in the state prison for one year. The Rep. 59, it was held that, where the court Court of Appeals held that the offense was has jurisdiction of the subject-matter and of a misdemeanor, that the sentence was ex
cessive upon a valid conviction, but refused to discharge the prisoner and remanded him to the sheriff to be further dealt with by the trial court.
In Re Grabam, 74 Wis. 151, 13 N. W. 148, 17 Am. St. Rep. 174, it was held that a judy. ment sentencing a person to imprisonment for a longer term than the statute authorizes is merely erroneous, and not void for want of jurisdiction. The court proceeded: "We (leny the writs, for the reason that the error in the judgments does not render them void, or the imprisonment under them illegal, in that sense which entitles them to be discharged on a writ of habeas corpus. juclyments are doubtless erroneous, and would be reversed on writ of error. Fitzgerald v. State, 4 Wis. 395; Ilaney v. State, 5 Wis. -29); Benedict v. State, 12 Wis. 314; Peglow 1. State, 12 W'is. 531. But the judgments are not void. State ex rel. Welch v. Sloan, 65 Wis. 617, 27 N. W. 616. The court had jurisdiction of the persons and subject-matter or offense, but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not by habeas corpus. The law is well settled in this court that on habeas corpus only jurisdictional defects are inquired into. The writ does not raise questions of Orrors in law or irregularities in the proredlings. In re Crandall, 3+ Wis. 177; In re Pierre, 4+ Wis. 411."
In Ex parte Van Hagan, 25 Ohio St. 132, sentence had been pronounced under a statute which had been repealed. The Supreme ('ourt of Ohio stated: “The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction. Ex parte Stephen M. Shaw, 7 Ohio St. 81, 70 Am. Dec. 55, approved and followed on this point."
In Sennot's Case, 146 Mass. 489, 16 N. E. 418, 4 Am. St. Rep. 314, it was claimed that the commitment of a juvenile offender to the state board to be sent to the Lyman School, was not authorized and was not the proper place. The Supreme Court of Massachusetts said: "If there was in the sentence or the prior proceedings any irregularity affecting the validity of the judgment, it can be corrected upon a writ of error. But neither irregularities nor errors. so far as they were within the jurisdiction of the court, can be inquired into upon a writ of habeas corpus. Clarke's Case, 12
Case, 12 Cush. (Mass.) 320; Herrick v. Smith, 1 Gray (Mass.) 1, 50, 61 Am. Dec. 381; Adams v. Vase, 1 Gray (Mass.) 51; Es parte Watkins, 3 Pet.
(U. S.) 193, 7 L. Ed. 650; Ex parte Siebold, 100 U'. S. 371, 373, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Platt v. IIarrison, 6 Iowa, 79, 71 Am. Dec. 389. That a writ of habeas corpus cannot perform the functions of a writ of crror, in relation to proceedings of a court within its jurisdiction, is univers. ally agreed. The only conflict of authority touching the subject is in regard to what acts are open to inquiry upon the question of jurisdiction. It is held in this state, and by good autliorities elsewhere, that the constitutionality of a law which a court is attempting to apply lies at the foundation of the jurisdiction under it, and may be called in question upon habeas corpus. IIerrick v. Smith, 1 Gray Mass.) 1, 49, 61 Am. Dec. 381; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; l'eople v. Roff, 3 Parker, Cr. R. 216. But this doctrine has been contradicted, and action founded upon an unconstitutional law has been held a mistake which can only be corrected upon a writ of error. In re Ilarris, 17 Mo. 164. So there has been diversity of opinion among different courts as to sentences which are not authorized by law. The better rule seems to be that where a court has jurisdiction of the person, and of the offense, the imposition by mistake of a sentence in excess of what the law permits is within the jurisdiction, and does not render the sentence void, but only voidable by procecxlings upon a writ of error. Ross' Case, 2 Pick. (Mass.) 16.3; Feeley's Case, 12 Cush. (Mass.) 598, 599 ; Semler, l'etitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55 ; Ex parte l'an Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 410; Kirby V. State, 62 Ala. 51; Lark v. State, 55 Ga. 435. It has sometimes been held that such a sentence is legal so far as it is within the provisions of law, and void as to the excess. People v. Jacobs, 66 N. Y. 8; People v. Baker, 89 N. Y. 460; Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696."
Extracts from other decisions pertinent to the inquiry at hand are:
Justice IIolmes, speaking for the court, in Re Stalker, 167 Mass. 12, 44 N. E. 1068, said: "We assume, as contended for the petitioner that there was error in his sentence because it did not include solitary imprisonment. Lane v. Commonwealth, 161 Mass. 120, 122, 36 N. E. 753. But on a writ of error this could be corrected. Pub, St. 1882, c. 187, 8 13; Jacquins v. Commonwealth, 9 Cush. (Mass.) 279. *
* * Manifestly, it would be an absurd result if the petitioner could get his discharge on habeas corpus when he could not get it by a regular proceeding to reverse his sentence. But whether the sentence could be corrected or could not be, the rule which has been approved by this court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner, and errs simply in regard to the extent of the punishment. Sennot's Case, 146 Mass. 489, 492, 193, 16 N. E. 418, 4 Am. St. Rep. 344; Feeley's
Case, 12 Cush. (Mass.) 598, 599. See Ex parte | Pet. (U. S.) 193, 7 L. Ed. 650; Ex parte SieBigelow, 113 U. S. 328, 5 Sup. Ct. 512, 28 L. bold, 100 U. S. 371, 25 L. Ed. 717; In re Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Underwood, 30 Mich. 502; Ross' Case, 2 Ct. 997, 40 L. Ed, 88."
Pick. (Mass.) 105; Feeley's Case, 12 Cush. Petition of Bishop, 172 Mass. 36, 51 N. E. (Mass.) 598; Semler, Petitioner, 41 Wis. 191: "The general rule is that where the 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. court has jurisdiction, and errs merely in Dec. 55; Ex parte Yan Hagan, 25 Ohio St. regard to the punishment, relief will not be 426; Phinney, Petitioner, 32 Me. 140; Kirby granted by habeas corpus, but that the reme v. State, 62 Ala. 51; People v. Liscomb), 60 dy is by a writ of error, in which the mis N. Y. 539, 19 Am. Rep. 211; Sennot's Case, take can be corrected and such sentence pro 146 Jass. 489, 16 N. E. 418, 4 Am. St. Rep. nounced as should have been imposed. Ross' 344; Ex parte Lange, 18 Wall. 163, 21 L. Ed. Case, 2 Pick. (Mass.) 165, 172; Sennot's Case, 872. It is said the judgment of imprison146 Mass. 489, 10 N. E. 448, 4 Am. St. Rep. ment, by not fixing a limit, is indefinite; but 314; Stalker, Petitioner, 167 Mass. 11, 44 N. the law itself defeats such a claim, for beE. 1068; Ex parte Bigelow, 113 U. S. 328, yond its limits the judgment is void, and 5 Sup. Ct. 542, 28 L. Ed. 1003; In re Belt, this proceeding is available for protection 159 U. S. 93, 15 Sup. Ct. 987, 10 L. Ed. 88. against illegal imprisonment." In exceptional cases, relief may be granted In People v. Kelly, 97 N. Y. 212, the de by habeas corpus, or questions of constitu fendant had been convicted of assault in the tionality considered. Feeley's Case, 12 Cush. third degree and sentenced to imprisonment (Mass.) 598; Plumley's Case, 156 Vass. 236, at hard labor in the state prison, and it 30 N. E. 1127, 13 L. R. A. 839. We discover was held that, while the sentence was void, nothing in this case which takes it out of as the conviction was valid, the prisoner the general rule.'
was not entitled to discharge upon habeas In re Belt, 159 U. S. 100, 15 Sup. Ct. 988, corpus, but should be remanded to the cus0 L. Ed. 88: "The general rule is that the tody of the sheriff. writ of habeas corpus will not issue unless In Re Harris, 68 V't. 2-13, 35 Atl. 5.), on the court, under whose warrant the petition habeas corpus, it appeared that the petitioner is held, is without jurisdiction; and that er was properly convicted. The sentence of it cannot be used to correct errors. Ordi. imprisonment in the state prison was void. na rily, the writ will not lie where there is a It was held that, while he was unlawfully remedy by writ of error or appeal; but in in the state prison, he was not unlawfully rare and exceptional cases it may be issued, restrained, and should be remanded to the although such remedy exists."
sheriff of the county in which he was conElsner v. Shrigley, SO Iowa, 35, 45 N. W. victed to be resentenced. 393: "In Jackson v. Boyd, 53 Iowa, 536, 5 In Ex parte McGuire, 135 Cal. 339, 67 Pac. N. W. 734, it is expressly stated that a fail 327, 87 Am. St. Rep. 105, it was held that ure to fix the time in the judgment 'would the writ of habeas corpus lies not only when not renderit void'; and also the extent of the prisoner is entitled to his liberty, but the imprisonment is fixed and declared by also when he is held by one person, and anthe statute, and when the defendant has other is entitled to his custody. Chief Jusbeen imprisoned the required length of time tice Beatty, speaking for the court, said: he is entitled to be discharged.' Without at "My conclusion is that the imprisonment of taching to this language a broader significa the petitioner in the county jail, in execution tion than is required by the facts considered, of his sentence for the misdemeanor, is unit sustains the view that the law is a lim warranted and illegal; but it does not follow, itation as to the extent of the imprisonment, as he contends, that he should be set at when no time is fixed in the judgment, and liberty. He is entitled to the benefit of the is against the view that the judgment is void writ of habeas corpus only so far as necesbecause under it the imprisonment might be sary to secure him in his legal right to be 'indefinite'; that is, to the time of the actual placed in the proper custody. It is therefore payment of the judgment. We reach the ordered that he be remanded to the custody conclusion that habeas corpus is not avail
of the sheriff for the purpose of delivery able to question the correctness of the pro forth with to the warden of the state prison.” ceedings of the district court with reference In Kingen v. Kelley, 28 Pac. 44, 3 Wyo. to the judgment in question, Our conclu 566, 15 L. R. A. 177, the court quoted approvsion has support, more or less direct, in ingly from O'Brien v. Barr, 49 N. W. 68, 83 many cases, and among them are Turney v. Iowa, 51: ““The imprisonment and its duBarr, 75 Iowa, 758, 38 N. W. 550; Hurd, Hab. ration could alone be determined by the court. Corp. (2d Ed.) 328; Cooley, Const. Lim. 317; But fixing the particular penitentiary in Shaw v. McHenry, 52 Iowa, 182, 2 N. W. which the petitioner should be confined is 1036; State v. Orton, 67 Iowa, 534, 23 N. W. not a part of the judgment. The effect and 775; Platt v. Harrison, 6 lowa, 79, 71 Am. duration of confinement is all that was juDec. 389; Zelle v. McHenry, 51 Iowa, 572, dicially determined by the judgment.'” 2 N. W. 264; Herrick v. Smith, 1 Gray
In Ex parte Waterman (D, C.) 33 Fed, 29, (Mass.) 50, 61 Am. Dec. 381; Adams v. Vose. the petitioner was sentencel to hard labor 1 Gris (Mass.) 51; Ex parte Watkins, 3 in the state prison at Auburn for three years,