Hinkle v. Howard

• Decision Date: 16 June 1947
• Docket Number: 28298.
• Citation: 73 N.E.2d 674,225 Ind. 176
• Parties: HINKLE v. HOWARD.
• Court: Indiana Supreme Court

73 N.E.2d 674

225 Ind. 176

HINKLE v. HOWARD.

No. 28298.

Supreme Court of Indiana

June 16, 1947

Appeal from LaPorte Circuit Court; Lee L. Osborn, Judge.

Joseph A. Hinkle, pro se.

No appearance for appellee.

GILKISON Judge.

Appellant filed his petition for a declaratory judgment in the LaPorte Circuit Court. It alleged in substance that he was convicted of forgery in the Grant Circuit Court on May 4, 1934, and sentenced to the state prison for an indeterminate term of not less than two nor more than fourteen years. He avers that he was thereafter released on parole but was returned to prison for violation, and was then, by the prison authorities, given the remainder of his fourteen year term, because of the violation. Appellant contends that this action of the prison authorities made his sentence a determinate sentence of fourteen years, and that he is entitled to the good time allowance on a determinate sentence of fourteen years, which would be five years, and reduce his determinate sentence to nine years. On this theory he should have been released on May 4, 1943.

Upon examination the court denied the petition from which denial this appeal is taken.

An action for a declaratory judgment is a statutory action based on the Acts of 1927, Ch. 81, p. 208. Burns' 1946 Repl. §§ 3-1101 to 3-1116, inclusive.

The rule is well settled that one who seeks to avail himself of a remedy provided by statute must, by his pleadings, bring himself substantially within the provisions of the statute on which he relies. Franklin v. Franklin, 1880, 71 Ind 573, 575; Fink v. Cleveland, etc., R. Co., 1914, 181 Ind. 539, 543, 105 N.E. 116; Wilmont v. City of South Bend, 1943, 221 Ind. 538, 543, 544, 48 N.E.2d 649; Ettinger v. Robbins, 1945, 223 Ind. 168, 171, 172 59 N.E.2d 118.

The particular section of the Declaratory Judgment Law upon which appellant's action is based is § 3-1102, Burns' 1946 Repl., which so far as applicable to appellant's complaint is as follows: 'Any person * * * whose rights, status or other legal relations are affected by a statute, * * * may have determined any question or construction or validity arising under the * * * statute, * * * and obtain a declaration of rights, status or other legal relations thereunder.'

This court has held that the only new remedy afforded by the Declaratory Judgment Law is to provide an adequate remedy in cases where no cause of action has arisen authorizing an executory judgment, and where no relief is or could be claimed. Relief under this statute can not be had where another established remedy is available. It is not intended to abolish the well-known causes of action, nor does it afford an additional remedy where an adequate one existed before. It should not be resorted to where there is no necessity for a declaratory...