Opinion
No. 31,339.
March 19, 1937.
Habeas corpus — as substitute for appeal.
The writ of habeas corpus is not to be used as substitute for an appeal.Habeas corpus by this court upon the relation of August Nielsen, directed to Thomas J. Gibbons as sheriff of Ramsey county, to whose custody relator was committed pursuant to order of the district court, Gustavus Loevinger, Judge, adjudging him guilty of contempt for failure to make alimony payments. Writ discharged.
Daniel J. Hollihan, for relator.
M.F. Kinkead, County Attorney, and Frank Drill, for respondent.
Convicted, by order, of contempt for failure to pay stated alimony and in consequence subjected to imprisonment, relator has procured
a writ of habeas corpus directed to the sheriff of Ramsey county, on whose return the matter has been submitted.
The one claim for relator is that in the district court there was an erroneous decision of the issue whether relator was or was not able to pay some alimony. That is enough to show that the writ should be discharged, for the simple and sufficient reason that a writ of habeas corpus may not be misused as substitute for writ of error or appeal, that is, as cover for collateral attack on the judgment of conviction. State ex rel. Newman v. Wall, 189 Minn. 265, 249 N.W. 37. For additional cases, see 3 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 4129. Cases in the category of Laff v. Laff, 161 Minn. 122, 200 N.W. 936, where the attack upon the conviction of contempt was by appeal and therefore direct and not collateral, are for that reason not in point.
Writ discharged.