Opinion
No. 28,554.
Filed May 4, 1949.
1. MANDAMUS — Proceedings — Petition — Form and Sufficiency — Respondent Named as Individual Instead of as Judge of Court — Sufficiency of Allegations. — Where there are sufficient allegations in petition for writ of mandamus to indicate that the action was brought against respondent as judge of the St. Joseph Circuit Court, even though the caption described him as an individual, such irregularity would be disregarded by the Supreme Court. p. 264.
2. MANDAMUS — Proceedings — Petition — Allegations Contrary to Record — Petition Denied. — Where relator's petition for writ of mandamus alleged, as basis of action, that respondent had revoked and nullified proceedings supplemental to execution before respondent's court, and the record of all proceedings, which was attached to petition, showed the contrary, the Supreme Court would be bound by the record, as it imports verity, and would deny the petition. p. 264.
Original action by the State of Indiana on the relation of LaSalle Extension University against Dan Pyle, Judge of the St. Joseph Circuit Court, on petition for writ of mandamus to compel respondent to reinstate relator's proceedings supplemental to execution which was being prosecuted in respondent's court.
Petition denied.
Olczak Olczak, of South Bend, for relator.
Dan Pyle, pro se, of South Bend, for respondent.
This is an original action wherein the relator seeks to mandate the respondent to reinstate certain proceedings supplemental to execution which are being prosecuted in respondent's court.
The relator has described the respondent in the caption of his petition as an individual. There are sufficient allegations in the petition, however, to indicate that the action is 1. brought against the respondent as Judge of the St. Joseph Circuit Court. We will, therefore, disregard this irregularity.
It is alleged in this petition that the respondent has "revoked and nullified said proceedings." It is not clear what is meant by this allegation. There is attached to said petition, 2. however, a certified copy of the record of all the proceedings referred to in same, and from this record it appears that these proceedings have not been in any manner, altered, modified, changed, revoked or nullified. In other words, relator's petition is contrary to the records of the court which is attached thereto. Under these circumstances we are bound by the record, as it imports verity. State ex rel. Thompson v. Rhoads (1946), 224 Ind. 136, 65 N.E.2d 248.
Relator's petition is, therefore, denied.
NOTE. — Reported in 85 N.E.2d 629.