Opinion
No. 27,951.
Filed January 3, 1944.
1. HABEAS CORPUS — Jurisdiction — Petitioner Restrained in Prison in LaPorte County — Vigo Circuit Court Without Jurisdiction. — Where it appeared that petitioner for writ of habeas corpus was restrained of his liberty by the warden of the Indiana State Prison in LaPorte County, the Vigo Circuit Court had no jurisdiction to issue the writ, and hence it would be a useless procedure to mandate such court to grant a change of judge. p. 106.
2. CRIMINAL LAW — Coram Nobis — Petition Before Regular Judge Who Tried Original Criminal Case — Change of Venue Not Permitted. — Where a petition for writ of error coram nobis is pending before the regular judge who tried the original criminal case in which petitioner was convicted, a change of judge is not permitted. p. 106.
Original action in the Supreme Court for a writ of mandate.
Petition by Garfield J. Kelly against John W. Gerdink, Judge of Vigo Circuit Court, for a writ of mandate to compel respondent to grant a change of judge in a proceeding pending in the Vigo Circuit Court.
Petition denied.
Garfield J. Kelly, of Michigan City, pro se.
This is an original action seeking a mandate for a change of judge in what is denominated "petitioner's Habeas Corpus Cause," said to be pending in the Vigo Circuit Court.
It appears from the face of the petition that the petitioner is restrained of his liberty by the warden of the Indiana State Prison in La Porte County. It follows that the Vigo 1, 2. Circuit Court has no jurisdiction to issue a writ of habeas corpus, and it would be a useless procedure to mandate the granting of a change of judge if such a change were permitted in such a proceeding. Newsom v. Miles et al. (1942), 220 Ind. 427, 44 N.E.2d 297. If, however, the petitioner has mistaken the character of his proceeding, and it is in fact a petition for a writ of error coram nobis, which there is reason to suspect, jurisdiction is in the Vigo Circuit Court. The matter is pending before the regular judge who tried the original criminal case in which the petitioner was convicted, and a change of judge is not permitted. State ex rel. Witte v. Smith, Judge (1942), 220 Ind. 536, 45 N.E.2d 204.
Petition denied.
NOTE. — Reported in 52 N.E.2d 43.