State Ex Rel. Tonan v. Bottorff, Judge , 219 Ind. 26 ( 1941 )

The relator alleges that he is serving a sentence of life imprisonment upon a conviction of kidnapping; that he filed a petition for a writ of error coram nobis in the Clark Circuit Court, in which he was convicted, but that the judge of said court has refused to act upon his petition. In a verified return it appears that, while a petition was filed, there has never been a request that it be assigned for trial.

It is a common practice in many of our courts of general jurisdiction that causes are not assigned for trial until a request for an assignment is made, and, under such circumstances, it cannot be said that the court has refused a trial. This court will not mandate the trial court to perform some duty which it has not been requested to perform.

Petition for writ of mandate denied.

NOTE. — Reported in 36 N.E.2d 766.