Opinion
No. 27,953.
Filed March 17, 1944. Rehearing denied April 5, 1944.
MANDAMUS — Grounds — Compelling Action on Petitions for Writ of Error Coram Nobis — Demurrer Sustained by Trial Court — Remedy by Appeal. — Where an appeal from a judgment in coram nobis proceedings resulted in the affirmance of the trial court's action and, when the cause was remanded, the State withdrew its answer and was permitted to file a demurrer which was sustained by the court, a writ of mandate would not issue to compel the trial court to try the issue presented by the petition for writ of error coram nobis, since the court had jurisdiction of the subject-matter and the person, and if the demurrer was improperly permitted or improperly sustained, the remedy is by appeal and not by original action.
Original action by the State of Indiana, on the relation of Lawrence Cook, against Hubert E. Wickens, as Special Judge of the Jennings Circuit Court, Jennings County, Indiana, for a writ of mandate to compel respondent to try the issue presented by relator's petition for a writ of error coram nobis. Writ denied.
Lawrence E. Cook, of Michigan City, for relator.
James A. Emmert, Attorney General, Frank Hamilton, First Assistant Attorney General, and Frank E. Coughlin, Deputy Attorney General, for the State.
The relator filed a petition for a writ of error coram nobis. Thereafter proceedings were had resulting in an appeal to this court in which the action of the trial court was affirmed. Cook v. State (1941), 219 Ind. 234, 37 N.E.2d 63. When the cause was remanded the State withdrew its answer and was permitted to file a demurrer, which was sustained by the court. In the present petition the relator asserts that the court exceeded its jurisdiction "in and by reconsidering said State's demurrer." An order is sought mandating the trial court to try the issue presented by the petition for a writ of error coram nobis. The trial court had jurisdiction of the subject-matter and of the person. If the demurrer was improperly permitted or improperly sustained, the remedy is by appeal and not by original action.
The writ is denied.
NOTE. — Reported in 53 N.E.2d 630.