Opinion
No. 27,982.
Filed March 21, 1944.
MANDAMUS — Grounds — Vacation of Order Dissolving Writ of Habeas Corpus — Remedy by Appeal — Writ Denied. — Where habeas corpus proceedings, in which relator contended he was entitled to be released from the Indiana State Prison because of an executive order commuting his sentence, and in which the State contended that the order had been revoked or, if not revoked, was illegal and void, was decided upon its merits by a court having jurisdiction, which made an order remanding petitioner to the custody of the prison authorities, petitioner's remedy, if the order was erroneous, was by appeal and hence a writ of mandate would not issue to compel the trial court to vacate its order dissolving its writ of habeas corpus.
Original action in the Supreme Court by the State of Indiana, on the relation of Clarence Schrock, against Frank J. Conboy as sole Judge of the LaPorte Circuit Court, for a writ of mandate to require respondent to vacate an order dissolving a writ of habeas corpus and to enter an order discharging relator from custody.
Petition denied.
Clarence Schrock, of Michigan City, pro se.
The relator is an inmate of the Indiana State Prison. He filed a petition for a writ of habeas corpus in the respondent court. A writ issued. The prison authorities filed a response showing that he was held under a commitment of a court of competent jurisdiction sentencing him to twenty years' imprisonment and that his term had not expired. It was relator's contention that he was entitled to discharge because of an executive order commuting his sentence. The State contended that the executive order had been revoked, and that if it had not been revoked it was illegal and ineffective. There was no controversy about the facts, and the court heard the parties upon the merits of the controversy, and made an order remanding the prisoner to the custody of the prison authorities and dismissing the petition for habeas corpus. The relator brings this action seeking a mandate to the respondent court directing it to vacate its order dissolving the writ and to enter an order discharging him from custody. The facts above recited appear upon the face of the petition.
The trial court considered a purely legal question. The facts were not in dispute. If the executive order commuting sentence was valid and effective, the relator had served his term of imprisonment and was entitled to be discharged. The question seems to have been decided upon the merits, and the relator was remanded to the custody of the warden. The respondent court had jurisdiction to make the decision. If it is erroneous the remedy is by appeal.
Petition denied.
NOTE. — Reported in 53 N.E.2d 630.