State ex rel. Powers v. Vigo Circuit Court, 29501
| Decision Date | 05 March 1957 |
| Docket Number | No. 29501,29501 |
| Citation | 140 N.E.2d 497,236 Ind. 408 |
| Parties | STATE of Indiana ex rel. James POWERS, Relator, v. VIGO CIRCUIT COURT, Herbert N. Criss, Sole Judge Vigo Circuit Court, and Lloyd C. Adamson, Special Judge, Respondents. |
| Court | Indiana Supreme Court |
T. Ernest Maholm, Indianapolis, for relator.
The relator has filed in this court a petition for a writ of mandate to compel the Honorable Lloyd C. Adamson as Special Judge to expunge a record in a proceeding for a writ of error coram nobis filed by the relator in the Vigo Circuit Court. The record referred to is as follows:
'Minutes for December 7, 1956.
James Powers
'Vigo Circuit Court
'The Court having heard the arguments of T. Ernest Maholm, attorney for petitioner herein, and of the Prosecuting attorney for the 43d. Judicial Circuit on the 'Plea to the Jurisdiction' Filed by such Prosecuting Attorney and the Motion to strike such 'Plea to the jurisdiction' filed by petitioner herein, and it being agreed by the parties in open Court that the only 'notice' Served upon the Prosecuting attorney of the 43d. Judicial Circuit was a copy of the petition herein, now rules as follows:
'1. The petition for writ of error corman nobis herein is in the nature of a civil action.
'2. Civil action is commenced only upon the issuance of summons and the placing of the same in the hands of the Sheriff for service.
'3. No summons was issued herein to the Prosecuting attorney for the 43d. Judicial Circuit.
'4. Under the decision of the Supreme Court of the State of Indiana in State ex rel. Wadsworth v. Mead, 225 Ind. 123, 73 N.E.2d 53, no proper notice has been served upon the state of Indiana.
'5. The action not having been properly commenced, the change of venue from the regular judge herein was improvident and the Special Judge appointed has no jurisdiction of this matter and is without authority to act as special judge in this case.
's/ Lloyd C. Adamson.
's/ Special Judge.'
The record filed by the relator shows that he pleaded guilty to forgery on June 10, 1954 in the Vigo Circuit Court, and was sentenced accordingly; that he filed a petition for a writ of error coram nobis in the same court on August 13, 1956. The record presented upon which we are asked to take action is defective in many particulars. The clerk of the trial court has certified only to the trial court's order book entries, and not to any of the papers or pleadings filed in the court. Attached to the petition are copies (uncertified) of what purports to be a petition for a writ of error coram nobis, two letters from the clerk, one concerning a change of venue from the judge, and two postal cards from the judges regarding the proceedings, and other miscellaneous papers. The clerk's certificate ends with the court entry of September 25, 1956, upon which date a plea to the jurisdiction of the court was filed by the prosecuting attorney. Thereafter, we must rely upon purported copies of the pleadings and informal letters and cards for any subsequent proceedings in the matter.
We do not wish to evade the consideration of matters on their merits in the interest of terminating litigation and the uncertainty in pending proceedings. Were it not for the response filed by the Honorable Lloyd C. Adamson, Special Judge, admitting the essential facts connected with the petition of the relator, we would be compelled to dismiss the proceedings for failure to comply with this court's Rule 2-35 as amended January 2, 1956; however, we shall accept the response as admissions in the pleadings of the facts.
The Constitution created the office of prosecuting attorney, and the laws and customs of this state make it clear that he represents the state of Indiana in all criminal matters arising within his jurisdiction unless the law disqualifies him for some reason.
Art 7, § 11, Indiana Constitution; 2 R.S. 1852, ch. 3, p. 385, being §§ 49-2501 to 49-2504, Burns' 1951 Replacement; Acts 1881 (Spec.Sess.) ch. 34, § 2, p. 111, being § 4-2302, Burns' 1946 Replacement; State v. Sopher, 1901, 157 Ind. 360, 61 N.E. 785.
A statute also provides that the attorney general must be notified of all actions filed in which the state of Indiana is made a party, and in which he 'is required or authorized to appear or defend.'
Acts 1947, ch. 196, § 1, p. 638, being § 49-1937, Burns' 1951 Replacement; Acts 1921, ch. 85, § 2, p. 181, being § 49-1902, Burns' 1951 Replacement.
The authority of the attorney general is dependent solely upon the statutes. He is required to appear in all criminal proceedings in the Supreme Court. We can find no statutes specifically requiring the attorney general to appear in proceedings in the trial court in opposition to a petition for a writ of error coram nobis; however, this court has held a number of times on the basis of § 49-1937 and § 49-1902, Burns' 1951 Replacement, that notice must be served upon the attorney general in such proceedings.
Blanton v. State, 1995, 234 Ind. 142, 124 N.E.2d 382; certiorari denied, 350 U.S. 850, 76 S.Ct. 90, 100 L.Ed. 756; State ex rel. Williams v. Superior Court of St. Joseph County, 1950, 228 Ind. 157, 94 N.E.2d 591; Laflin v. Schannen, 1947, 225 Ind. 470, 75 N.E.2d 898; State ex rel. Buchanan v. Gerdink, 1947, 225 Ind. 473, 75 N.E.2d 899; State ex rel. Sanders v. Reeves, 1950, 228 Ind. 293, 91 N.E.2d 912.
In the case of State ex rel. Wadsworth v. Mead, 1947, 225 Ind. 123, 73 N.E.2d 53, we held that notice should be served on the attorney general, and that it was proper to serve notice on the prosecuting attorney. Our position in that case was that the state of Indiana is a party in proceedings for a writ of error coram nobis since such proceedings involve the setting aside of a judgment of a trial court in criminal proceedings. It is reasonable and prudent therefore that the prosecuting attorney who represented the state in such criminal proceedings where the judgment is being attacked, should be notified and have the...
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