Wilson v. LaPorte County Superior Court

Bobbitt, C. J. 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. [308] The petition herein is insufficient for two reasons: First: § 49-1937, Burns’ 1933 (1949 Supp.); § 1, eh. 3, 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 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.