Opinion
No. 30,544.
Filed October 28, 1964.
1. MANDAMUS AND PROHIBITION — Failure to Show Duty to Act to Trial Court — Rules of Supreme Court. — In original action for mandamus the Supreme Court will not consider particulars of an action filed in the lower court where nowhere in the record does it appear that the duty of the lower court to act has been presented or brought to the attention of the trial court as required by Rule 2-35 of the Supreme Court. p. 16.
2. MANDAMUS AND PROHIBITION — Pleading and Practice — Ex Parte Communications to Court — Rules of Supreme Court. — In original action for mandamus letter from Chairman of County Committee for School Reorganization to Circuit Court was an ex parte communication by third persons and cannot be deemed compliance with Rule 2-35 of the Supreme Court, requiring that trial court first be shown its duty to act. p. 16.
Original action by State of Indiana on the relation of John W. Hamilton, relator, seeking to mandate respondents, the Owen Circuit Court and Austin B. Childress, as judge thereof, to call a certain election in Jefferson School Township for purposes of School Reorganization.
Petition for writ of mandamus denied.
Robert W. Neal, of Brazil, for relator. Austin B. Childress, pro se. Hickam Hickam, of Spencer, Amicus curiae.
Relator has filed original action for writ of mandate in this Court to compel respondent court to call an election in Jefferson School Township of Owen County, Indiana, pursuant to the School Corporation Reorganization Act of 1959, as amended.
Burns' § 28-6106 (1964 Supp.), Acts 1959, ch. 202, § 5(3), p. 451; 1961, ch. 231, § 1 (3), p. 544; 1963, ch. 381, § 1(3), p. 982.
Respondent has filed answer to the petition for the writ and the Owen County Committee for Reorganization of School Corporation, as amicus curiae, has filed brief in opposition to the writ.
We need not here consider the particulars of the actions filed in the lower court growing out of the controversy here involved as nowhere in the record does it appear that the duty of 1. the lower court to act has heretofore been presented or brought to the attention of the trial court as required by Rule 2-35 of this Court.
Relator in reply has contended that this requirement is met by a letter written from the chairman of the Clay County Committee for the Reorganization of School Corporations to respondent 2. judge on June 3, 1963. However, ex parte communications by third persons with respondent court can certainly not be deemed a compliance with this rule. In the interest of orderly procedure relator should in a proceeding pending before respondent court present or bring to the attention of such court the question of the duty of the said court to act prior to initiating the action in mandate in this Court.
This rule was intended to obviate needless original actions for writs of mandate and prohibition in this Court by requiring the prior presentation of the question by the party to the lower court in a proper proceeding and relator having failed to comply therewith, the petition for the writ of mandate must be denied.
Petition denied.
NOTE. — Reported in 201 N.E.2d 781.