Trodglen v. Judge, Daviess Circuit Court

CULLEN, Commissioner. David L. Trodglen, a prisoner in the state penitentiary under sentence from the Daviess Circuit Court, has filed in this Court a petition, naming as respondent “Judge, Daviess Circuit Court,” seeking an order of mandamus to compel the respondent to furnish the petitioner, as a pauper, a record of the trial at which he was convicted, in order that he may prosecute an appeal he has taken from the judgment of conviction. The petition alleges that the respondent denied his application, accompanied by a pauper’s affidavit, to be furnished the record. An original proceeding in this Court seeking an order to control the action of a trial court is in the nature of a personal action against the judge of the trial court, and the judge against whom the order is sought must be sued by name, and properly served with notice of the petition. Commonwealth Dept. of Highways v. Circuit Court, Ky., 365 S.W.2d 106; James v. Judge of Jefferson Circuit Court, 265 Ky. 595, 97 S.W.2d 544. There is particular reason for this rule where, as in the case here, the trial court has more than one judge. The petition here fails for lack of a proper respondent. The petition is dismissed.