State ex Rel. Bevington v. Myers, Judge

Full title: STATE EX REL. BEVINGTON v. MYERS, JUDGE

Court: Supreme Court of Indiana

Date published: May 7, 1942

41 N.E.2d 358 (Ind. 1942)

41 N.E.2d 358

Opinion

No. 27,721.

Filed May 7, 1942.

1. PLEADING — Construction — Character Determined From Contents and Not by Title. — The character of a pleading is determined from its contents rather than its title. p. 150.

2. HABEAS CORPUS — Jurisdiction — Marion Criminal Court — Petitioner Confined in State Prison. — The Criminal Court of Marion County has no jurisdiction of a petition for writ of habeas corpus filed by a person who was convicted by that court, but who is serving sentence in the Indiana State Prison, since he is not being restrained of his liberty in Marion County. p. 150.

Original action by the State of Indiana on the relation of Ernest Lee Bevington against Dewey E. Myers, judge of Marion Criminal Court, for a writ of mandate to require respondent to act upon his petition for a writ of habeas corpus. Petition denied.

Ernest Lee Bevington per se.

PER CURIAM.

This is an original action in mandate. The petition recites that the petitioner is serving sentences in the State prison for robbery and grand larceny imposed by the Criminal Court of Marion County; that on the 26th day of February, 1942, he filed in said court a petition for a writ of habeas corpus and, subsequently, a request for the appointment of an attorney to represent him in the prosecution of said petition and also a motion for a change of venue from the judge. The petitioner says that the Criminal Court of Marion County has refused to entertain and act upon his petitions and motion.

While the character of a pleading is determined from its contents rather than its title, we are obliged to accept the petitioner's recital that he is seeking a writ of 1, 2. habeas corpus since the pleadings presented to the Criminal Court of Marion County are not before us. The Criminal Court of Marion County has no jurisdiction of the proceeding for a writ of habeas corpus, the petitioner not being restrained of his liberty in Marion County. § 3-1905, Burns' 1933, § 1023, Baldwin's 1934. Ex Parte Wiley (1871), 36 Ind. 528.

The petition for writ of mandate is, therefore, denied.

NOTE. — Reported in 41 N.E.2d 358.