Opinion
No. 28,772.
Filed February 21, 1951. Petition for Correction of Errors denied April 23, 1951.
1. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Allege Service of Notice on Attorney General — Petition Insufficient. — In an original mandamus action to compel a superior court to hear an alleged petition for a writ of mandate, the petition was insufficient because it failed to allege that a copy of the petition for a writ of mandate filed in the superior court had ever been served upon the Attorney General, and, in the absence of such an averment, no action in the superior court was shown to have been commenced. Burns' 1933 (1949 Supp.), § 49-1937. p. 308.
2. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Set Forth Pleadings, Orders and Entries — Petition Insufficient. — In an original mandamus action to compel a superior court to hear an alleged petition for a writ of mandate, the petition of the Supreme Court was insufficient because it did not set out, or have attached as exhibits thereto, certified copies of all pleadings, orders and entries pertaining to the subject matter in the superior court as required by Supreme Court rule. Rules of the Supreme Court, 2-35. p. 308.
Original action by Sam Wilson against the LaPorte County Superior Court for an alternative writ of mandamus to compel respondent to hear an alleged petition for a writ of mandate filed in respondent court.
Petition denied.
Sam Wilson, pro se.
The petitioner herein, by verified petition, seeks an alternative writ of mandate to compel the LaPorte County Superior Court to hear an alleged petition for writ of mandate, which was filed by petitioner in said LaPorte County Superior Court on March 9, 1950.
The petition herein is insufficient for two reasons:
First: § 49-1937, Burns' 1933 (1949 Supp.); § 1, ch. 3, 1. Acts of 1945, as amended by § 1, ch. 196, Acts of 1947, provides:
"Whenever any suit, action, counter-claim, petition or cross-complaint is filed in any court in this state in which the state of Indiana or any board, bureau, commission, department, division, agency or officer of the state of Indiana is a party defendant when the attorney-general is required or authorized to appear or defend, or when the attorney-general is entitled to be heard, a copy of the complaint, cross-complaint, petition, bill or pleading shall be served on the attorney-general and such action, cross-action or proceeding shall not be deemed to be commenced as to the state or any such board, bureau, commission, department, division, agency or officer until such service."
There is no showing here that petitioner served a copy of his petition for writ of mandate upon the Attorney-General as provided in § 49-1937, supra, and until this is done petitioner has no cause of action commenced in the LaPorte Superior Court. This Court cannot, therefore, mandate the LaPorte Superior Court to proceed in an action which has not there commenced. State ex rel. Spires v. Bottorff, Judge (1949), 227 Ind. 229, 84 N.E.2d 882.
Second: Petitioner has failed to comply with Rule 2-35 of the Rules of the Supreme Court which provides that certified copies of all pleadings, orders and entries pertaining to the 2. subject matter of an action be set out in the petition or made exhibits thereto. State ex rel. Spires v. Bottorff, Judge, supra.
For the above reasons the petition is denied.
NOTE. — Reported in 96 N.E.2d 879.