Burch v. Whaley, Warden

223 S.W.2d 355, 311 Ky. 53, 1949 Ky. LEXIS 1049

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: September 27, 1949
• Status: Published

Opinion

Van Sant, Commissioner

Dismissing petition.

The action was instituted in this court for a writ of habeas corpus. The petitioner is a prisoner in the Kentucky State Reformatory under two judgments of the Fayette Circuit Court and one judgment of the Bell Circuit Court.

The judge of the Oldham- Circuit Court being absent from the county on account of illness, petitioner attempted to file his petition for a writ of habeas corpus in the Oldham County Court. The petition was caused to be delivered to the Judge of that court in person. The petition filed in this court alleges that the county judge refused to permit it to be filed in his court, and returned the petition to the petitioner without entering any formal order in respect to the matter. The county judge should have permitted the petition to have been filed, and should have heard the case on its merits and have entered judgment either granting or denying the, writ. Upon Ms failure to act in the matter, petitioner had the right to file an original action in this court seeking a writ of mandamus to compel action; but this court, in habeas corpus proceedings, has appellate jurisdiction only, consequently it does not have jurisdiction to consider the case as an original action. Wooten v. Buchanan, Warden, 310 Ky. 853, 222 S. W. 2d 186.

Wherefore, the petition is dismissed, without prejudice to petitioner’s right to proceed in the manner outlined above.