Lester v. Grant Circuit Court

78 N.E.2d 785, 226 Ind. 186, 1948 Ind. LEXIS 150

• Court: Indiana Supreme Court
• Decided: April 26, 1948
• Docket: No. 28,448.
• Status: Published

Opinion

Emmert, C. J.

Petitioner seeks a writ of mandate

to require the judge of the Grant Circuit Court to hear an alleged petition for writ of habeas corpus filed by petitioner in said court. There is no allegation that there has ever been any service of a copy of his pleadings in the Grant Circuit Court upon the Attorney General as required by § 49-1937, Burns’ 1933 (Supp.) (Acts 1945, ch. 3, §1, p. 7; Acts 1947, ch. 196, § 1). Petitioner has no action commenced in the Grant Circuit Court until this is done. State ex rel. Wadsworth v. Mead (1947), 225 Ind. 123, 73 N. E. 2d 53; State ex rel. Minton v. Parke Circuit Court (1948), Ante, p. 55, 77 N. E. 2d 749.

Nor does the petition comply with Rule 2-35 of this court which requires in this sort of action “certified copies of all pleadings, orders and entries pertaining to the subject matter” in the inferior court. The petition here does not state a cause of action. State ex rel. Talkington v. Hoffman, Judge (1947), 225 Ind. 475, 76 N. E. 2d 252; State ex rel. Crawford v. Owen, Judge (1948), 225 Ind. 601, 77 N. E. 2d 123; State ex rel. Lee v. Wilson, Judge (1948), 225 Ind. 640, 77 N. E. 2d 354.

Moreover, petitioner seeks to prosecute this action in his own name instead of in the name of the State of Indiana on his relation. This court has previously held this requirement to be mandatory. Board of Public Safety v. Walling (1934), 206 Ind. 240, 246, 187 N. E. 385; Rogers v. Youngblood, Judge (1948), Post, 645, 78 N. E. 2d 663. The petition fails to state a cause for relief and therefore it is denied.

Note.—Reported in 78. N. E. 2d 785.