Opinion
No. O-96.
Filed June 14, 1950.
1. MANDAMUS — Jurisdiction, Proceedings and Relief — Parties — Use of Name of State — Petition Prosecuted in Name of Petitioner Instead of State Is Fatally Defective. — An original action for a writ of mandamus brought in the petitioner's own name, and not in the name of the State on his relation, does not comply with a mandatory statutory provision, and the petition should be denied. Burns' 1946 Replacement, § 3-2201. p. 430.
2. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Allege Service of Notice on Attorney General — No Action Commenced — Mandamus Will Not Lie. — In an original mandamus action to compel respondent judge to hear petitioner's alleged application for a restoration of his sanity pending in respondent's court where the petition failed to allege a copy of his application had been served upon the Attorney General as required by statute, relief by mandamus would be denied. Burns' 1933 (1949 Supp.), § 49-1937. p. 430.
3. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Set Forth All Pleadings, Orders and Entries of Trial Court as Required by Court Rule — Petition Defective. — In an original mandamus action to compel respondent judge to hear petitioner's alleged application for restoration of his sanity pending in respondent's court where the petition failed to contain, or have attached thereto, certified copies of all pleadings, orders and entries pertaining to the subject matter in the lower court as required by Supreme Court rule, the petition was defective and would be denied. Rules of the Supreme Court, 2-35. p. 430.
Original action by Dwight L. Becker against Merton B. Stanley, as Judge of the Howard Circuit Court, for an alternative writ of mandamus to compel respondent judge to hear petitioner's alleged application for restoration of his sanity.
Petition denied.
Dwight L. Becker, pro se, for petitioner.
This is an original action in this Court. The petitioner herein seeks an alternate writ of mandate to compel the said Merton B. Stanley, as Judge of the Howard Circuit Court, to hear the 1-3. petitioner's alleged application for the restoration of his sanity now pending in the said Court. The action herein is brought in the petitioner's own name and not in the name of the State of Indiana on his relation, as required by § 3-2201, Burns' 1946 Replacement. The provision of this statute is mandatory and it is legally impossible for an action of mandate to be prosecuted by one in his individual and personal capacity. For this reason alone this petition should be denied. Bd. of Public Safety v. Walling (1934), 206 Ind. 540, 187 N.E. 385; Rogers v. Youngblood, Judge (1948), 226 Ind. 165, 78 N.E.2d 663. Furthermore, the petition herein fails to allege that a copy of the petitioner's said application for the restoration of his sanity has been served by him upon the Attorney General as required by § 49-1937, Burns' 1933 (1949 Supp.), nor does this petition contain, or have attached as exhibits, "certified copies of all pleadings, orders and entries pertaining to the subject matter" in the Howard Circuit Court as required by Rule 2-35 of this Court.
For all the foregoing reasons the petition is denied.
NOTE. — Reported in 92 N.E.2d 851.