Opinion
No. O-36.
Filed January 27, 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. — In an original action for writ of mandamus, a petition prosecuted in the name of the petitioner instead of in the name of the state on the relation of petitioner is fatally defective. p. 122.
2. 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 Defective. — In an original action for writ of mandamus, a petition which fails to have attached thereto certified copies of all pleadings, orders, and entries pertaining to the subject matter as required by Supreme Court rule is fatally defective. Rules of the Supreme Court, 2-35. p. 122.
3. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Allege Service of Notice on Attorney General — No Action Commenced — Petition Defective. — In an original action for writ of mandamus to require trial court to hear his verified petition for writ of error coram nobis, where petitioner failed to allege that the Attorney General had been served with notice of the filing of relator's petition for writ of error coram nobis, no action was commenced in the trial court, and the petition for the writ of mandate was fatally defective. Burns' 1933 (1949 Supp.), § 49-1937. p. 122.
Original action by Eli Wyatt against the Criminal Court of Lake County upon petition for writ of mandamus to require respondent to hear relator's petition for writ of error coram nobis. Petition denied.
Eli Wyatt, pro se, for relator.
The petitioner seeks an alternate writ of mandate from this court to require the judge of the Criminal Court of Lake County to hear his verified petition for a writ of error coram nobis, which he alleges was filed September 19, 1949.
The petition is fatally defective in several respects: (1) It is prosecuted in his own name instead of the name of the State of Indiana on the relation of the petitioner. (2) The 1-3. petition does not have attached thereto "certified copies of all pleadings, orders and entries pertaining to the subject matter" as required by Rule 2-35. (3) There is no allegation that the Attorney General has been served with notice of the filing of the petition in the trial court.
On the authority of Lester v. Grant Circuit Court (1948), 226 Ind. 186, 78 N.E.2d 785, and authorities therein cited, the petition is denied.
NOTE. — Reported in 89 N.E.2d 718.