Collier v. Conley , 386 S.W.2d 270 ( 1965 )

DAVIS, Commissioner.

In this original proceeding invoking KRS 21.050, pursuant to Ky.Constitution § 110, Willard Earl Collier asserts that he is presently confined as a prisoner in the Kentucky State Reformatory, LaGrange. Petitioner avers that he filed in the Floyd Circuit Court a motion to vacate judgment, pursuant to RCr 11.42, and that the motion was received by the clerk of that court on October 21, 1964. Petitioner alleges that he has not been served with any response to the motion, nor has any information been received by him whether any action has ever been taken upon it.

We observe that petitioner, acting pro se and in forma pauperis, has failed to specifically state that the judgment which he seeks to vacate is the one under which he is presently confined; in view of the fact that he is presently without counsel, we will indulge the presumption that such is the situation.

Respondent has not made any answer to the present petition. Under the. authority of Benson v. Iler, Ky., 371 S.W.2d 15, and Benson v. Iler, Ky., 371 S.W.2d 16, we have, no choice except to .treat as confessed the petitioner’s allegations and grant the requested relief.

As noted in Wahl v. Simpson, Judge, Ky., 385 S.W.2d 171, (decided December 18, 1964) it is imperative that the circuit courts take prompt action and notify the movants of the action taken upon RCr 11.42 motions.

The petition for mandamus is sustained and respondent is directed to dispose of the RCr 11.42 motion by appropriate order.