Opinion
No. 29,405.
Filed May 18, 1956.
1. APPEAL — Pauper Affidavit — Furnishing Record — Mandate — Compliance With Rule 2-35. — Where in mandamus action relator failed to provide court with bill of exceptions containing evidence heard upon his petition for being furnished a record at expense of county no issue is presented for consideration to this court under Rule 2-35. p. 449.
2. APPEAL — Pro Forma Pauperis — Evidence. — Where respondent elected to submit cause on merits and filed omitted bill of exceptions as a part of their return to alternative writ, which evidence showed relator was single and earned $46.40, take home pay, such evidence does not sustain allegation that relator had no money or means to pay appeal costs, and does not exclude possibility that he could borrow money or that he could pay costs as they accrued out of future earnings without hardship to himself or persons dependent on him. p. 449.
Original action by John Lyman Wise, as relator, for writ of mandate to compel respondents to order Clerk to furnish copy of record and court reporter to prepare transcript of evidence. An alternative writ was issued.
Alternative writ is withdrawn.
T. Ernest Maholm, of Indianapolis, for relator.
Saul I. Rabb, pro se.
Relator has filed a petition for an alternative writ of mandate directed to the respondents to require the latter to order the Clerk of the Marion Circuit Court and ex officio Clerk of the Criminal Court of Marion County, Division 2, to prepare a complete record of Causes numbered Cr. 15783, 15784, 15785 and 15786, and by order direct the official Court Reporter to prepare a transcript of all of the evidence submitted at the hearing of said above numbered causes, which were consolidated and all tried at the said time on January 10, 1956, and to further order that the costs of same be paid out of the public funds of Marion County, Indiana.
In support of his petition, relator asserts that he has no money or means with which to pay for an attorney to represent him on said appeal and no money or means with which to pay the costs of a bill of exceptions and record in said four causes.
The cause was submitted to the respondent court on February 17, 1956, at which time the evidence was heard on the petition. The petition was thereafter denied.
The relator has failed to provide the court with a bill of exceptions containing the evidence submitted at said proceedings. Therefore, no issue is presented by relator's 1. petition for consideration by this court. Rule 2-35.
However, respondents have elected to submit the issue on its merits and filed the omitted bill of exceptions as a part of their return to the alternative writ of mandate. The court 2. will follow the will of the parties and consider the case on its merits. The pertinent evidence relative to relator's right to appeal "in forma pauperis" is as follows:
"Q. You married?
"A. No sir.
. . .
"Q. You're just penniless?
"A. That's right.
"Q. You have no money in a savings account or anything like that?
"A. No sir.
"Q. How old are you?
"A. 19.
"Q. How long have you been working?
"A. Since I was about 16.
. . .
"Q. Where do you live?
"A. 1114 Bates.
"Q. What do you make a week when you work?
"A. I clear $46.40.
"Mr. Maholm (attorney for relator): `He has a job waiting for him.'
"Q. $46.40? It doesn't cost you much to live, does it?
"A. No."
The evidence does not sustain the allegation that relator had no money or means with which to pay the costs of this appeal. It does not exclude the possibility that he could borrow the money or that he could pay these costs as they accrued out of his future earnings without unreasonable hardship to himself or persons dependent upon him for support.
Therefore, the alternative writ of mandate heretofore issued is withdrawn.
NOTE. — Reported in 134 N.E.2d 221.