Opinion
No. O-100.
Filed June 13, 1950.
1. 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 original mandamus action to compel respondent judge to hear relator's petition for writ of error coram nobis, where relator failed to allege service upon the Attorney General of a copy of his petition for a writ of error coram nobis as required by statute, relief by mandamus would be denied. Burns' 1933 (1949 Supp.), § 49-1937. p. 428.
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 mandamus action to compel respondent judge to hear relator's petition for a writ of error coram nobis, where relator's petition for a writ of mandamus failed to contain, or have attached thereto, certified copies of all pleadings, orders and entries pertaining to the subject matter in the trial court as required by Supreme Court rule, the petition for mandamus would be denied. Rules of the Supreme Court, 2-35. p. 428.
3. MANDAMUS — Subjects of Relief — Acts and Proceedings of Courts — Coram Nobis — Attempt To Obtain New Hearing in Case Decided More Than Five Years Previously — No Jurisdiction — Mandamus Will Not Lie. — In an original mandamus action to compel respondent judge to hear relator's petition for a writ of error coram nobis, where relator's petition showed he was attempting to obtain a new trial in a case in which he was convicted more than five years prior to the institution of the proceedings, the trial court could have no jurisdiction after such a lapse of time and mandamus would be denied. Burns' 1942 Replacement, § 9-3301. p. 428.
Original action by the State of Indiana on the relation of Arnold A. Clark against William J. Murray, as Judge of the Lake Criminal Court, for an alternative writ of mandamus to compel respondent to hear relator's alleged petition for a writ of error coram nobis.
Petition denied.
Arnold A. Clark, pro se, for relator.
This is an original action wherein the relator seeks an alternate writ of mandate to compel the respondent to hear the relator's alleged petition for writ of error coram nobis filed in respondent's court.
The petition of relator fails to allege that he has served a copy of his petition for writ of error coram nobis upon the Attorney General as required by § 49-1937, Burns' 1933 1-3 (1949 Supp.), Acts 1945, ch. 3, § 1, p. 7, Acts 1947, ch. 196, § 1, p. 638; nor does the relator's petition contain, or have attached as exhibits, "certified copies of all pleadings, orders and entries pertaining to the subject matter" in the Lake Criminal Court as required by Rule 2-35 of this Court. For these reasons alone this petition should be denied. State ex rel. Patterson v. Miami Circuit Court (1948), 226 Ind. 395, 81 N.E.2d 536. There is an added reason, however, why this petition must be denied. A copy of relator's petition for a writ of error coram nobis is attached to the petition herein. It shows that the relator is attempting to obtain a new trial in a case in which he was convicted more than five years prior to the institution of the proceedings for the writ. Under Chapter 189, Acts 1947, § 1, p. 625, § 9-3301, Burns' 1942 Replacement, it is provided that no court shall have jurisdiction to entertain any proceeding for a writ of error coram nobis after such lapse of time. See Pembleton v. McManaman (1949), 227 Ind. 194, 84 N.E.2d 889.
For all the foregoing reasons the petition is denied.
NOTE. — Reported in 92 N.E.2d 850.