Opinion
Nos. 27,745, 27,783.
Filed December 10, 1942. Rehearing denied January 11, 1943.
1. MANDAMUS — Grounds — Refusal of Court to Allow Habeas Corpus Petition to Be Filed — Lack of Jurisdiction Apparent — Effect. — Where it appeared from an exhibit attached to petitioner's application in the Supreme Court for a writ of mandate to require a trial court to receive and file his application for writ of habeas corpus and to act thereon that such court sought to be mandated had no jurisdiction to grant the relief prayed for, petitioner suffered no harm by the refusal of that court to permit the application for writ of habeas corpus to be filed, and a writ of mandate in the Supreme Court was denied. p. 646.
2. HABEAS CORPUS — Jurisdiction — Review of Proceedings of Courts of General Jurisdiction Prohibited. — Neither courts of general jurisdiction nor the Supreme Court can review the proceedings of a court of general jurisdiction for error by habeas corpus proceedings. p. 646.
3. CRIMINAL LAW — Coram Nobis — Expense of Proceedings — Expenditure of Public Funds for Transcript Not Authorized. — A petitioner for writ of error coram nobis is not entitled to be furnished at public expense a transcript of the record in the original trial, nor is the public required to bear any of the expense of the preparation or prosecution of the action, including counsel for petitioner. p. 647.
4. MANDAMUS — Grounds — Hearing on Petition in Lower Court — Date Set — Issue of Mandate Not Decided. — Where the only relief to which petitioner for a writ of mandate by the Supreme Court was entitled was a hearing in the lower court on his petition for writ of error coram nobis, which hearing had been set, it was unnecessary for the Supreme Court to decide the issue of mandate. p. 647.
5. MANDAMUS — Grounds — Right to Prosecute Action as Poor Person — Abuse of Discretion — Remedy by Appeal. — An application to be permitted to prosecute an action as a poor person presents a subject for the sound discretion of the trial court, and the remedy for an abuse of such discretion is by appeal and not by mandate. p. 648.
Original actions by the State of Indiana, on the relation of Clyde Jones, against Russell W. Smith, as regular judge of the LaPorte Superior Court, and against John W. Hornaday, as trial judge, and/or Ernest R. Stewart, as present judge, of the Boone Circuit Court, for writs of mandate to compel certain action in proceedings pending in such courts.
Petitions denied.
Clyde Jones, pro se.
These two original actions were filed by the same Clyde Jones whose petition for a writ of habeas corpus filed as an original action in this court was denied in Jones v. Dowd, Warden (1941), 219 Ind. 114, 115, 37 N.E.2d 68.
In 27,745 he asks this court to mandate the respondent to receive and file relator's application for a writ of habeas corpus and to act thereon. As an exhibit to his 1, 2. petition he attaches a copy of the application for a writ of habeas corpus which he says the respondent judge did not permit to be filed in the LaPorte Superior Court. This application contains substantially the same allegations, with greater degree of particularity, that were contained in the petition filed in cause No. 27,635 and denied in Jones v. Dowd, Warden, supra. We said in that case that petitioner was seeking to use a writ of habeas corpus as a method of review for error of law in the trial in which he was convicted. We added: "Procedure and methods of correcting error of law by appeal are provided by statute, and neither courts of general jurisdiction nor this court can review the proceedings of a court of general jurisdiction for error by habeas corpus proceedings." Since it appears from the exhibit attached to his petition that the LaPorte Superior Court had no jurisdiction to grant the relief prayed therein, it follows that petitioner suffered no harm by the refusal of the judge of that court to permit the application to be filed. The petition for writ of mandate in 27,745 is therefore denied. See also State ex rel. O'Leary v. Smith, Judge (1941), 219 Ind. 111, 37 N.E.2d 60.
In 27,783 relator asks that we mandate the judge of the Boone Circuit Court to set a date for a hearing on relator's motion for the appointment of counsel to prosecute a petition for a 3, 4. writ of error coram nobis now pending in said court and to set a date for a trial of said petition. We are informed that the Honorable Ernest R. Stewart, Judge of the Boone Circuit Court, has set for hearing on the 6th day of January, 1943, the petition for writ of error coram nobis and has so advised relator. It was held in State ex rel. Cutsinger v. Spencer, Judge (1941), 219 Ind. 148, 41 N.E.2d 601, that a petitioner for writ of error coram nobis is not entitled to be furnished at public expense a transcript of the record in the original trial. In the opinion we said: "We know of no constitutional provision that requires that the public shall bear any of the expense of the preparation or prosecution of the petitioner's action seeking to overthrow the judgment, nor of any statute requiring or authorizing the expenditure of public funds for such a purpose." See also State ex rel. Sawa v. Criminal Court of Lake County (1942), ante p. 4, 40 N.E.2d 971. Upon the authority of these cases we are of the opinion that relator is not entitled to counsel furnished at public expense to prosecute his writ. Inasmuch as the only relief to which he is entitled is a hearing which has already been set, it is unnecessary for us to issue a writ of mandate against the Boone Circuit Court or the judge thereof. Relator's petition in cause No. 27,783 is denied.
ON PETITION FOR REHEARING.
Relator in a petition for rehearing says that we should have mandated respondent to assign relator counsel for the prosecution of his petition for writ of error coram nobis either 5. pursuant to constitutional authority or § 2-211, Burns' 1933, § 26, Baldwin's 1934. We held in the original opinion that there is no constitutional requirement for appointment of counsel at public expense. The statute referred to is a part of the Civil Procedure Act of 1881. We need not decide herein whether or not the statute is applicable to coram nobis proceedings. It rightly has been held by this court in Hoey v. McCarthy (1890), 124 Ind. 464, 24 N.E. 1038, that, "An application to be permitted to prosecute an action, as a poor person, presents a subject for the sound discretion of the nisi prius court; . . ." This being the case mandate does not lie but the remedy for an abuse of discretion is by appeal.
Petition for rehearing denied.
NOTE. — Reported in 45 N.E.2d 203, 46 N.E.2d 199.