Opinion
No. 20524.
Decided November 30, 1964.
From an order and judgment dismissing the prisoner's petition for a writ of habeas corpus, the prisoner brings error.
Writ of Error Dismissed.
1. HABEAS CORPUS — Rules — Writ of Error — Dismissal. Where prisoner, who alleged unlawful jail detention, failed to file, in apt time or otherwise, a motion for substitution of the successors in office for the Warden and Manager of Safety respectively as provided in Rule 25 (d), R.C.P. Colo., and in each instance a successor was appointed who has now served in particular office to which he was appointed for much more than six months, the writ of error must be dismissed.
Error to the District Court of the City and County of Denver, Hon. Mitchel B. Johns, Judge.
SALAZAR DeLANEY, DONALD C. DIETMANN, for plaintiff in error.
DUKE W. DUNBAR, Attorney General, FRANK E. HICKEY, Deputy, JOHN P. MOORE, assistant, for defendants in error.
THIS writ of error is directed to an order and judgment of the trial court dismissing Wildenstein's petition for a writ of habeas corpus. In this petition, which was filed October 16, 1962, Wildenstein alleged that he was being unlawfully held and confined in the Denver County Jail by one Dan Stills, Warden of said county jail, and by John M. Schooley, the Manager of Safety and Ex-Officio Sheriff of the City and County of Denver.
Thereafter both Stills and Schooley resigned and accordingly "ceased to hold office" as Warden and Manager of Safety respectively. In each instance a successor was appointed and each has now served in the particular office to which he was appointed for much more than six months. Wildenstein did not within apt time, or otherwise, file a motion for substitution of the successors in office for Stills and Schooley, as provided in Rule 25 (d), R.C.P. Colo. Accordingly, the writ of error must be and the same hereby is dismissed. See Bach v. Schooley, 155 Colo. 30, 392 P.2d 649 and Ray v. Schooley, et al., 156 Colo. 33, 396 P.2d 730.
MR. JUSTICE DAY and MR. JUSTICE FRANTZ, concur.