Ex parte LUCAS

Ex parte LUCAS
1937 OK 1
64 P.2d 652
178 Okla. 624
Case Number: 27667
Decided: 01/09/1937
Supreme Court of Oklahoma

Ex parte LUCAS

Syllabus

¶0 HABEUS CORPUS -- Original Application in Supreme Court of Oklahoma Court Considered Confessed and Writ Issued in Absence of Response or Appearance by Officer Having Petitioner in Custody.
Where a petition for a writ of habeas corpus is filed and this court issues its order and rule to show cause, fixes a date for hearing the petition, and admits petitioner to bail pending such hearing, and the officer having petitioner in custody fails to file a response or to appear at the time and place fixed for the hearing, this court may consider the application confessed and issue the writ.

Original application to the Supreme Court for a writ of habeas corpus by F. J. Lucas. Writ granted.

Joe W. Simpson and Luther P. Lane, both of Tulsa, and R. S. Howe, of Oklahoma City, for petitioner.

PHELPS, Justice.

¶1 In a divorce proceeding in the district court of Pottawatomie county, petitioner was ordered to pay the sum of $25 per month for the maintenance and support of his minor child. Application was made to the court for citation for contempt, in which application it was alleged that petitioner had failed, neglected, and refused to make the payments. Upon this application citation was issued. Demurrer was filed to the application and, ultimately, petitioner was incarcerated in the county jail of Pottawatomie county for contempt of court because of his failure to make said payments. He applied to this court for a writ of habeas corpus, alleging that he was illegally incarcerated.

¶2 This court issued its "order and rule to show cause," admitted petitioner to bail, and ordered that said matter be heard by this court on January 5, 1937. On January 5th petitioner appeared with his attorneys, but no appearance was made by or for the sheriff of Pottawatomie county or the complainant in the original application for citation, neither was any response filed to the order and rule to show cause.

¶3 An examination of petitioner's petition convinces us that he has made a prima facie showing entitling him to the writ prayed for, and, in the absence of any response to the order and rule to show cause, it is our duty to consider the application confessed and the writ is issued.