Kelly v. Gerdink, Judge

52 N.E.2d 43, 222 Ind. 105, 1944 Ind. LEXIS 102

• Court: Indiana Supreme Court
• Decided: January 3, 1944
• Docket: No. 27,951.
• Status: Published

Opinion

Per Curiam.

This is an original action seeking a mandate for a change of judge in what is denominated “petitioner’s Habeas Corpus Cause,” said to be pending in the Vigo Circuit Court.

It appears from the face of the petition that the petitioner is restrained of his liberty by the warden of the Indiana State Prison in La Porte County. It follows that the Vigo Circuit Court has no jurisdiction to issue a writ of habeas corpus, and it would be a useless procedure -to mandate the granting of a change of judge if such a change were permitted in such a proceeding. Newsom v. Miles et al. (1942), 220 Ind. 427, 44 N. E. (2d) 297. If, however, the petitioner has mistaken the character of his proceeding, and it is in fact a petition for a writ of error coram nobis, which there is reason to suspect, jurisdiction is in the Vigo Circuit Court. The matter is pending before the regular judge who tried the original criminal case' in which the petitioner was convicted, and a change of judge is not permitted. State ex rel. Witte v. Smith, Judge (1942), 220 Ind. 536, 45 N. E. (2d) 204.

Petition denied.

Note.—Reported in 52 N. E. (2d) 43.