Summary
In State ex rel. Wall v. Cass Circuit Court (1954), 233 Ind. 192, 117 N.E.2d 126, we noted we do not conduct a hearing in original actions, but that the verified pleadings 1. constitute the evidence, and that court proceedings must be proved as required by Rule 2-35.
Summary of this case from State ex rel. Rooney v. Lake Circuit CourtOpinion
No. 29,076.
Filed February 5, 1954. Rehearing denied March 31, 1954.
1. MANDAMUS AND PROHIBITION — Essentials of Petition for Writ — Allegations — Order Book Entries. — The Supreme Court does not conduct hearing or take testimony in original actions for mandamus and evidence in proceedings consist of verified petition and return, and proper exhibits to each as provided by Rule 2-35. Since a court speaks only through its order book entries, the burden was upon relator to prove in compliance with Rule 2-35, the action of the court of which she complains. p. 193.
2. MANDAMUS AND PROHIBITION — Original Actions — Courts — Order Book Entries — Minutes. — Order book entries do not depend for their validity or stability upon memoranda entered in the bench docket. Matters omitted from the order book entries may be shown by minutes in the bench docket, for the purpose of establishing that the order was made and the means by which it may be procured, through nunc pro tunc proceedings and an order book entry which is inconsistent with minutes made at the time of order, the minutes may be used as a basis for correction. p. 193.
Original action of Edna Wall, relator, for a writ of mandamus directed to the respondent court and judge thereof to compel the holding of a hearing on the approval of a contract to construct a drain. (See Wall v. Wilson, 231 Ind. 207.)
Alternative writ dissolved and permanent writ denied.
Hillis Hillis, of Logansport, for relator. Hurst Grund, of Peru, and Hanna Small, of Logansport, for respondents.
We issued an alternative writ of mandamus directed to respondents commanding the court, in cause number 4587 entitled "In the Matter of the Petition of Edna Wall," to hold a hearing on the approval of a contract to reconstruct a drain, and the bond to secure the same, or show cause why the same should not be done. This controversy was previously before this court in Wall v. Wilson (1952), 231 Ind. 207, 105 N.E.2d 343.
This court does not conduct a hearing or take testimony in proceedings for writs of mandamus or writs of prohibition, yet this court does not act in such matters without evidence. The evidence in such proceedings consists of the verified petition and the return, and proper exhibits to each. Rule 2-35 requires that "If the relief sought relates to a proceeding in an inferior court certified copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto."
Relator as an exhibit to her petition has filed certified copies of minutes made in the court's bench docket, but no cause is shown why the order book entries in this proceeding 1, 2. are not filed as exhibits. In Cook v. State (1941), 219 Ind. 234, 238, 37 N.E.2d 63, this court laid down the correct rule as to how a court action is shown as follows: "The court speaks by its record, which is the order book. Order book entries do not depend for their validity or stability upon memoranda entered in the bench docket. It is true that when action is taken, a record of which is omitted from the order book, minutes in the bench docket may be the basis for establishing that the order was made and the means by which it may be procured to be entered nunc pro tunc, and when an entry on the order book is inconsistent with minutes made at the time the order was made, the minutes may be the basis for a correction."
The burden was on the relator to prove, in compliance with the rule, the action of the court of which she complains. For failure to comply with the rule, the alternative writ heretofore issued is vacated and annulled, and the petition is now denied.
NOTE. — Reported in 117 N.E.2d 126.