Opinion
No. O-57.
Filed March 15, 1950.
1. 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 Rules — Petition Insufficient. — In original actions for writs of mandamus or prohibition, failure to set forth in such petitions certified copies of all pleadings, orders and entries of trial court, as required by Supreme Court rules, makes the petition insufficient. Rules of the Supreme Court, 2-35. p. 158.
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 action for writ of mandamus to compel the trial court to hear and determine relator's petition for writ of error coram nobis, where relator's petition failed to allege that notice of the coram nobis petition was served on Attorney General, as required by statute, no action was commenced in the trial court, and writ of mandamus would be denied. Burns' 1933 (1949 Supp.), § 49-1937. p. 158.
3. CRIMINAL LAW — Writ of Error Coram Nobis — Action — Notice to Attorney General — Required by Statute for Commencement of Action. — A proceeding for writ of error coram nobis to review conviction of rape is not commenced until notice is served upon the Attorney General, as required by statute. Burns' 1933 (1949 Supp.), § 49-1937. p. 158.
Original action by the State of Indiana on the relation of Forester Williams against the Superior Court of St. Joseph County, Room 2, J. Elmer Peak, Judge, upon petition for writ of mandamus to compel the trial court to hear and determine relator's petition for writ of error coram nobis.
Alternative writ of mandamus denied.
Forester Williams, pro se, for relator.
The petition herein seeks an alternate writ of mandamus to compel the trial court to hear and determine his petition for writ of error coram nobis which the petition alleges was filed January 7, 1950. A copy of the petition for writ of error coram nobis is set out in his petition here, and it shows that he was convicted of rape as charged in an affidavit filed April 16, 1937.
The relief sought relates to the proceedings of an inferior court, and Rule 2-35 requires that in original actions for writs of mandamus or prohibition from this court, "certified 1. copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto." Failure to do so makes the petition insufficient. State ex rel. Talkinton v. Hoffmann (1947), 225 Ind. 475, 76 N.E.2d 252; State ex rel. Crawford v. Owen (1948), 225 Ind. 601, 77 N.E.2d 123; State ex rel. Lee v. Wilson (1948), 225 Ind. 640, 77 N.E.2d 354.
Nor does the petitioner here show that he has any proceeding commenced in the Superior Court of St. Joseph County, Room 2, since there is no allegation that notice of the 2, 3. proceeding was ever served upon the Attorney General as required by § 49-1937, Burns' 1933 (1949 Supp.), and until such notice is served upon the Attorney General no action is commenced. State ex rel. Wadsworth v. Mead (1947), 225 Ind. 123, 73 N.E.2d 53; Lester v. Grant Circuit Court (1948), 226 Ind. 186, 78 N.E.2d 785; Pembleton v. McManaman (1949), 227 Ind. 194, 84 N.E.2d 889.
The petition for alternate writ of mandamus is denied.
Young, J., not participating.
NOTE. — Reported in 94 N.E.2d 591.