Becker v. Stanley , 228 Ind. 429 ( 1950 )

This is an original action in this Court. The petitioner herein seeks an alternate writ of mandate to compel the said Merton B. Stanley, as Judge of the Howard Circuit Court, to hear the 1-3. petitioner's alleged application for the restoration of his sanity now pending in the said Court. The action herein is brought in the petitioner's own name and not in the name of the State of Indiana on his relation, as required by § 3-2201, Burns' 1946 Replacement. The provision of this statute is mandatory and it is legally impossible for an action of mandate to be prosecuted by one in his individual and personal capacity. For this reason alone this petition should be denied. Bd. ofPublic Safety v. Walling (1934), 206 Ind. 540, 187 N.E. 385;Rogers v. Youngblood, Judge (1948), 226 Ind. 165,78 N.E.2d 663. Furthermore, the petition herein fails to allege that a copy of the petitioner's said application for the restoration of his sanity has been served by him upon the Attorney General as required by § 49-1937, Burns' 1933 (1949 Supp.), nor does this petition contain, or have attached as exhibits, "certified copies of all pleadings, orders and entries pertaining to the subject matter" in the Howard Circuit Court as required by Rule 2-35 of this Court.

For all the foregoing reasons the petition is denied.

NOTE. — Reported in 92 N.E.2d 851.