Where, as in the present habeas corpus case, the only issue made by the petitioner's pleadings and evidence was that the sentence under which the petitioner is incarcerated is invalid and void because his counsel was not present when the sentence was imposed and there was ample evidence submitted upon the hearing to support the conclusion that the petitioner, being fully informed that his counsel was not in court, expressly waived his presence and voluntarily requested the judge then presiding to proceed to sentence him in the absence of his counsel, the judge hearing the habeas corpus case committed no error in dismissing the writ and remanding the petitioner to the custody of the warden.