Title 1 — Title 1 — Code Of Civil Procedure

Petition to be under oath; contents. (a) The petition for the writ of habeas corpus shall be sworn to and shall state: (i) The person for whom the writ is sought is restrained of his liberty, by whom he is restrained and the place where he is restrained, stating the names of the …

Petition to be verified; presentation. The petition shall be sworn to by the person confined or by someone in his behalf, and presented to a court or officer authorized to allow the writ.

part of state. Courts and judges allowing writ; service in any The writ of habeas corpus may be allowed by the supreme or district court or by any judge of those courts. It may be served in any part of the state.

Petition to be made to nearest judge. Petition for a writ shall be made to the court or judge most convenient in point of distance to the applicant. A more remote court or judge may refuse the writ unless a sufficient reason is stated in the petition for not applying to the more …

Writ to be allowed if grounds sufficient; contents of writ. (a) The writ shall be allowed if the petition shows a sufficient ground for relief and is in accordance with the foregoing requirements. (b) The writ shall be directed to the person having custody of or who is alleged to…

Issuance of writ. When the writ is allowed by a court, it is to be issued by the clerk, but when allowed by a judge he must issue the writ himself, subscribing his name thereto without any seal.

Reasons to be assigned for disallowance. If the writ is disallowed, the court or judge shall cause the reasons of the disallowance to be appended to the petition and returned to the person applying for the writ.

Penalty for wrongful disallowance. Any judge, acting individually or as a member of a court, who wrongfully and willfully refuses the allowance of the writ when properly applied for, shall forfeit to the party aggrieved the sum of one thousand dollars ($1,000.00).

Duty of court to issue writ without application in certain instances. Whenever any court or judge authorized to grant this writ has evidence from a judicial proceeding before it that any person within the jurisdiction of the court or judge is illegally imprisoned or restrained, t…

Service of writ. The writ may be served by the sheriff or by any other person appointed by the issuing court or judge for that purpose. If served by any person other than the sheriff, he possesses the same power and is liable to the same penalty for a nonperformance of his duty a…

Manner of service. Service shall be made by leaving the original writ with the person to whom it is directed as defendant and preserving a copy on which to make the return of service. If the defendant cannot be found, or if he does not have the plaintiff in custody, service may b…

Authorization to arrest defendant. If the defendant conceals himself or refuses admittance to the person attempting to serve the writ, or if he attempts wrongfully to carry the plaintiff out of the county or state after service of the writ, the person attempting to serve the writ…

Power of sheriff making arrest. In order to make the arrest, the sheriff or other person having the writ possesses the same power as a sheriff for the arrest of a person charged with a felony.

Plaintiff may be taken in custody by officer; power of officer. If the plaintiff is found and no one appears to have charge or custody of him, the person having the writ may take him into custody and make return accordingly. To get possession of the plaintiff's person in such cas…

Order for summary production of plaintiff. The court or judge to whom the petition for the writ is made may order the sheriff or any other person to bring the plaintiff promptly before the court or judge if convinced that the plaintiff will suffer irreparable injury before he can…

offense. Order for defendant's arrest for criminal When the evidence is sufficient to justify the arrest of the defendant for a criminal offense committed in connection with the illegal restraint of the petitioner, the order shall also order the arrest of the defendant.

Order for defendant's arrest for criminal offense; service of order of arrest. The officer or person to whom the order is directed must execute it by bringing the defendant, and the plaintiff if required, before the court or judge issuing it. The defendant shall make return to th…

defendant. Examination, commitment or discharge of The defendant may be examined, committed, bailed or discharged according to the nature of the case.

Errors in writ to be disregarded. The writ of habeas corpus shall not be disobeyed for any defect of form or misdescription of the plaintiff or defendant if enough is stated to show the meaning and intent of the writ.

Identity of defendant presumed. Any person served with the writ is presumed to be the person to whom it is directed, although it may be directed to him by a wrong name or description.

Contents of defendant's answer. The defendant in his answer shall state simply and unequivocally whether he then has or at any time has had the plaintiff under his control and restraint, and if so, the reason therefor. If he has transferred him to another person, he shall state t…

Petitioner may reply to answer; trial by court. The petitioner may reply to the defendant's answer, and all issues joined thereon shall be tried by the judge or court.

Evidence before magistrate may be reviewed. The reply may deny the sufficiency of the testimony to justify the action of the committing magistrate, on the trial of which issue all written testimony before the magistrate may be given in evidence before the court or judge in connec…

for contempt. Compelling attendance of witnesses; punishing The judge issuing the writ of habeas corpus or the judge before whom it is tried has the same power as a court to compel the attendance of witnesses or to punish contempt of his authority.

Certain proceedings not reviewable. Habeas corpus is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, or a petit jury in the trial of a cause nor of a court or judge when acting within their jurisdiction and in a lawful ma…

When petitioner to be discharged. If no sufficient legal cause of detention is shown, the petitioner must be discharged.

Errors in commitment to be disregarded. Although the commitment of the petitioner was irregular, if the court or judge is satisfied from the evidence that he ought to be held to bail or committed either for the offense charged or any other, an order may be made accordingly.

Petitioner may be committed or admitted to bail. The petitioner may be committed, let to bail or his bail be mitigated or increased as justice requires.

Custody of petitioner pendente lite. Until the sufficiency of the cause of restraint is determined, the defendant may retain the petitioner in his custody.

Presence of petitioner at trial; waiver. The petitioner or his attorney may waive in writing his right to be present at the trial, in which case the proceedings may be had in his absence. The writ in such cases will be modified accordingly.

Refusal of officer to deliver copy of process. Any officer refusing to deliver a copy of any legal process by which he detains the petitioner in custody to any person who demands a copy, shall forfeit five hundred dollars ($500.00) to the person detained.

Transfer, removal or concealment of person with intent to avoid service. Whoever, having under his restraint any person for whose release a writ of habeas corpus has been issued or is being applied for, transfers that person to the custody or control of another or conceals the pl…

Papers to be filed; journal entry. When the proceedings are before a judge and the writ is allowed, all papers in the case shall be filed with the clerk of the district court of the county wherein the final proceedings are had, and the final order shall be entered by the clerk up…

Fees and costs not to be advanced. No officer shall refuse to perform any of the duties required by law in habeas corpus proceedings because his fees are not paid in advance, but the judge or court to whom a petition is made may require the petitioner to give security for the pay…