Opinion
No. 29,298.
Filed March 13, 1956.
APPEAL — Criminal Law — Writ of Error Coram Nobis — Cause Not Put At Issue — Evidence Not Heard — No Appealable Final Judgment. — In an appeal from the overruling of a petition for writ of error coram Nobis the court's minutes are not sufficient to constitute an appealable final judgment and, further, the Prosecuting Attorney did not appear, the cause was not put at issue, counter-affidavits were not filed and evidence was not heard and, therefore, this cause is remanded for further proceedings.
From the St. Joseph Circuit Court, Dan Pyle, Judge.
John Melvin Gorham, appellant, filed his petition for writ of writ of error coram nobis, which was overruled and appellant appeals. Remanded for further proceedings.
Alvin Blieden, of Michigan City, and Alexis T. Cholis, of South Bend, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling and Robert S. Baker, Deputy Attorneys General, for appellee.
This is an appeal from the St. Joseph County Circuit Court wherein the trial court "overruled" appellant's petition for writ of error coram nobis.
The court's minutes are not sufficient to constitute an appealable final judgment.
Furthermore, the record discloses that the action of the court was taken without appearance by the prosecuting attorney, without the cause being put at issue and without counter affidavits being filed or evidence being heard.
Therefore, the cause is remanded to the trial court for further proceedings consistent herewith.
Bobbitt, C.J., Arterburn, Emmert and Landis, JJ., concur.
NOTE. — Reported in 132 N.E.2d 616.