Pembleton v. McManaman, 28543.
| Decision Date | 31 March 1949 |
| Docket Number | No. 28543.,28543. |
| Citation | 227 Ind. 194,84 N.E.2d 889 |
| Parties | PEMBLETON v. McMANAMAN. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Original action by A. L. Pembleton against Morris McManaman, Judge, Dearborn Circuit Court, asking Supreme Court to mandate respondent judge to set for hearing and hear a petition for writ of error coram nobis.
Petition denied.
A. L. Pembleton, pro se.
Morris McManaman, Judge, Dearborn Circuit Court, of Lawrenceburg, for respondent.
Petitioner has filed his original action in this court, asking us to mandate respondent judge to set for hearing and hear petitioner's petition filed in the Dearborn Circuit Court for a writ of error coram nobis.
Petitioner has filed his original action in this court in his own name and not in the name of the state upon his relation. Mandate proceedings, such as this is, must be brought in the name of the state on the relation of the accused person and this is more than a mere nominal requirement. It is a remedy which the individual is not entitled to have, but which the state permits him when aggrieved, to enforce in the name of the state. Schuble v. Youngblood, Judge, Ind.Sup., 1947, 73 N.E.2d 478;Board of Public Safety v. Walling, 1933, 206 Ind. 540, 546, 187 N.E. 385.
Petitioner has made no showing that notice of the filing of his petition for a writ of error coram nobis in the Dearborn Circuit Court was ever served upon the Attorney General, and, in the absence of such notice, his proceeding for writ of error coram nobis has not been commenced and therefore is not pending, § 49-1937, Burns' 1947 Sup., in which situation a writ of mandate to act therein will not be granted. State ex rel. Wadsworth v. Mead, Ind.Sup.1947, 73 N.E.2d 53, 55;Lester v. Grant Circuit Court, Ind.Sup.1948, 78 N.E.2d 785, 787.
Petitioner has attached to his complaint in this court a copy of his petition for a writ of error coram nobis alleged to have been filed in the Dearborn Circuit Court on January 13, 1949, in which he alleges that on November 13, 1942, a judgment of guilty against him was entered in said Dearborn Circuit Court and commitment was issued under which he is now confined in the Indiana state prison. It is to obtain a new trial in the case in which he was convicted on November 13, 1942, that his petition for writ of error coram nobis was filed in the Dearborn Circuit Court. It appears affirmatively therefore that more than five years had elapsed from the time of judgment of conviction to the date...
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