Legal Opinion

In re McCutcheon

Montana Supreme Court

Decided July 15, 1890PublishedCited by 5 opinions

Original proceeding. Application for writ of habeas corpus. The record in this case which is made a part of the petition discloses the fact that the defendant in this action stood mute, made no plea, and no waiver of his right of trial by jury. Unless he expressly waived his right to a trial by jury the justice had no jurisdiction to determine the cause.

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Original proceeding. Application for writ of habeas corpus. The record in this case which is made a part of the petition discloses the fact that the defendant in this action stood mute, made no plea, and no waiver of his right of trial by jury. Unless he expressly waived his right to a trial by jury the justice had no jurisdiction to determine the cause. No such waiver having been made, no trial has been had, and the pretended judgment entered in this case after the farce had been played is absolutely void. Prior to the adoption of the Constitution the court had no jurisdiction to hear, try,…

1Opinion of the CourtHarwood, J.

The petitioner, in his application for a writ of habeas corpus, declares that he is unlawfully confined and restrained of his liberty by Joseph Hamilton, sheriff of the county of Cascade. The illegality of the confinement is alleged to consist in the facts “that the warrant of commitment upon which the petitioner is restrained is based upon a pretended judgment, which is void upon its face, the same having been rendered by one W. H. Pace, he having at the time no jurisdiction to render the same, as appears from a transcript of the proceedings had in that behalf, a copy of which is hereto…

2Cases cited5 opinions

  1. Ex Parte YergerSupreme Court of the United States · 1869
  2. In re StateCourt of Appeals of Maryland · 1880
  3. Sennott's CaseMassachusetts Supreme Judicial Court · 1888
  4. State ex rel. Arkansas Industrial Co. v. NeelSupreme Court of Arkansas · 1886
  5. Ex parte LehmkuhlCalifornia Supreme Court · 1887

3Cited by5 opinions

  1. State ex rel. Jackson v. KennieMontana Supreme Court · 1900
  2. Ex parte DiazSupreme Court of Puerto Rico · 1904
  3. State ex rel. Marion v. ReynoldsMontana Supreme Court · 1894
  4. State ex rel. Simard v. Fourth Judicial District CourtMontana Supreme Court · 1893
  5. Ex parte DiazSupreme Court of Puerto Rico · 1904

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