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60-1503. The writ. (a) Issuance. The petition shall be presented promptly to a judge in the district court in accordance with the procedure of the court for the assignment of court business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court, the petition shall be dissolved at the cost of the plaintiff. If the judge finds that the plaintiff may be entitled to relief, the judge shall issue the writ and order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate.

(b) Form. The writ shall be directed to the party having the person under restraint and shall command such person to have the restrained person before the judge at the time and place specified in the writ.

(c) Service. The writ shall be served without delay. If directed to the sheriff it shall be served by the clerk. If directed to any other person it shall be served by the sheriff or some other person designated by the judge. If the person to whom it is directed cannot be found or shall refuse admittance, the writ may be served by leaving it at such person's residence or affixing it at some conspicuous place where the party is confined or restrained.

(d) Sundays, holidays and accessibility. The writ may be issued and served at any time, including Sundays, holidays, and days on which the office of the clerk of the court is not accessible.

History: L. 1963, ch. 303, 60-1503; L. 1994, ch. 227, § 4; L. 2010, ch. 11, § 17; April 1.

Source or prior law:

(a). G.S. 1868, ch. 80, § 662; L. 1909, ch. 182, § 690; R.S. 1923, 60-2204.

(b). G.S. 1868, ch. 80, § 663; L. 1909, ch. 182, § 691; R.S. 1923, 60-2205.

(c). G.S. 1868, ch. 80, §§ 664 through 666; L. 1909, ch. 182, §§ 692 through 694; R.S. 1923, 60-2206 through 60-2208.

(d). G.S. 1868, ch. 80, § 681; L. 1909, ch. 182, § 708; R.S. 1923, 60-2222.

Cross References to Related Sections:

Service of process, generally, see 60-303.

Law Review and Bar Journal References:

"Election of Remedies in Multistate Child Custody Disputes: Writ of Habeas Corpus or Filing and Enforcement of Foreign Custody Pursuant to the Uniform Child Custody Jurisdiction Act," Michael Laster, Vol. X, No. 2, J.K.T.L.A. 15 (1986).

Attorney General's Opinions:

Sheriff; transporting inmates to civil proceedings. 87-147.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2204, 60-2205, 60-2222 and the 1961 Supp. thereto.

1. Error to summarily dismiss petition which did not correctly state who held petitioner in custody when it is clear petitioner is in Lansing Correctional Facility. Griffin v. Gilchrist, 33 K.A.2d 233, 100 P.3d 99 (2004).

2. Petition must allege shocking and intolerable conduct of constitutional stature to avoid summary dismissal. Williams v. DesLauriers, 38 K.A.2d 629, 633, 172 P.3d 42 (2007).


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