Ex parte, J. W. Nye.
1. Habeas Corpus — Limit to inquiry. The statute expressly declares, (§ 071, ell. 80, Gen. Stat.,) that no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, when the party is in custody upon any process issued on any final judgment of a court of competent jurisdiction.
2. -Application for Writ must state Facts. The statute contemplates a statement of facts in the application for a writ of habeas corpus, not mere conclusions of law; and before a court or judge should allow the Writ enough should appear in the application for the court to form some judgment on the case.
Petition for a Writ of Habeas Corpus.
Petition filed in this court on behalf of J. W. Wye, for a writ of habeas corpus. The petition alleged that Wye was illegally restrained of his liberty by E. IT. Coates, the sheriff of Lyon county, at the county jail in Emporia; that such restraint was “ upon an order of arrest issued against said Wye in an action before Eelix Gr. Hunt, a justice of the peace of said Lyon county, after judgment against55 said Wye, which order was issued upon the affidavit of S. and "W., plaintiffs in said action, “ charging pretended fraud against said Wyef
*100that such restraint is- illegal, in this: “First, that the aforesaid affidavit and order of arrest were had in a case where the defendant* had been arrested before judgment, upon previous affidavit and order of arrest, upon which previous affidavit and order said defendant, by the final judgment rendered in said action, had been adjudged to be liable to imprisonment, defendant at the'time of such judgment being at liberty upon his sufficient undertaking to render himself amenable to the process which might be issued upon final judgment in said cause; second, that the affidavit filed before judgment as aforesaid contains no facts to warrant the arrest of the defendant; third, that the affidavit filed after judgment contains no facts to warrant the arrest of said defendant.” The petition was made and verified by E. S. "W., attorney for and in behalf of Wye.
E. 8. Waterbury, for petitioner. No counsel for the State, and no briefs for either party.
The opinion of the court was delivered by
Kingman, C. J.:
This is an application for the writ of habeas corpus. It must be refused for two reasons, either of which is sufficient.
I. It appears by the petition that the applicant is in custody by virtue of process issued on a final judgment of a court of competent jurisdiction; and this fact precludes an inquiry into the legality of the judgment or process by which he is imprisoned, and would prevent this court from discharging him from custody: § 671, ch. 80, Gen. Stat.
II. The petition avers that the applicant for the writ is in custody by virtue of an order of arrest issued by a justice of the peace. It is alleged that the affidavit on which the decision of the justice was based contains no facts to warrant the arrest of the applicant. No copy of the affidavit is furnished; no statement of its character is made. The statement that it does not contain facts to warrant the arrest is a conclusion of law, and not a statement of facts. Before this court will bring *101a man from a distant county enough should appear iu the application for the writ for the court to form some judgment on the case; and this the statute contemplates
The writ must be refused.
All the Justices concurring.