Opinion
Nos. O-162, O-167, O-172, O-176, O-181.
Filed April 5, 1951.
1. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Set Forth Pleadings, Orders and Entries — Petition Insufficient. — In an original mandamus action for relief relating to a proceeding in an inferior court, the petition is insufficient if it fails to set out, or to have attached thereto as exhibits, certified copies of all pleadings, orders and entries pertaining to the subject matter in the inferior court. Rules of the Supreme Court, 2-35. p. 280.
2. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Allege Service of Notice on Attorney General — Petition Insufficient. — In an original mandamus action for relief relating to a proceeding in an inferior court, the petition is insufficient if it fails to contain an allegation that the Attorney General has been served with notice of the proceedings in the inferior court, for, in the absence of such an averment, no action is shown to have been commenced in that court. Burns' 1951 Replacement, § 49-1937. p. 280.
Five original actions, by Albert Warmouth against Judge DeWitt Owen, by Joseph Jones against Judge William Murray, Lake County Criminal Court, by Delver Webster against the Presiding Judge of the Ohio Circuit Court, by Garfield J. Kelly against Lloyd C. Adamson, as Special Judge, Vigo Circuit Court, and by the State of Indiana on the relation of Floyd DeLong against A. Dale Eby, as Judge of the Gibson Circuit Court, for writs of mandamus.
Petitions denied.
Albert Warmouth, Joseph Jones, Delver Webster, Garfield J. Kelly and Floyd DeLong, pro se.
The defects in these petitions are common to each with the exception of Cause No. O-172. In each of these original actions the relief sought relates to a proceeding in an inferior 1. court, and each petitioner has failed to set out in his petition or make exhibits thereto "certified copies of all pleadings, orders and entries pertaining to the subject matter," as required by Rule 2-35. Therefore, each petition is insufficient. State ex rel. Spires v. Bottorff, Judge (1949), 227 Ind. 229, 84 N.E.2d 882; State ex rel. Sanders v. Reeves, Judge (1950), 228 Ind. 293, 91 N.E.2d 912; State ex rel. Parlow v. Baker, Judge (1950), 228 Ind. 495, 93 N.E.2d 199.
Cause No. O-172 does allege substantial compliance with § 49-1937, Burns' 1951 Replacement, but all other petitions fail to allege that the Attorney General of Indiana was ever served 2. with notice of the proceedings in the trial court. Until this is done pursuant to said statute there is no proceeding commenced in the trial court. White v. Marion Criminal Court (1949), 227 Ind. 167, 84 N.E.2d 588; State ex rel. Bramlett v. LaPorte Superior Court (1950), 229 Ind. 77, 95 N.E.2d 631.
There are other defects in several of the other petitions which are not necessary to discuss. The issuance of the alternative writ is denied in each action.
NOTE. — Reported in 97 N.E.2d 866.