Opinion
No. 29,202.
Filed October 7, 1954.
1. MANDATE AND PROHIBITION — Petition for — Sufficiency of — Rules of Supreme Court. — Rule 2-35 requires relator in an action for writ of mandate and prohibition to set out in his petition, or as an exhibit thereto, certified copies of all pleadings, orders and entries pertaining to subject-matter, and since rules are binding alike on all litigants and the rule must be impartially enforced, this Court will not issue a writ of mandate or prohibition where there has been a failure to comply with this Rule. p. 554.
2. MANDATE AND PROHIBITION — Petition — Sufficiency of — Response — Cure or Waiver of Defects in Petition. — Where respondents furnished certified copies of six paragraphs of counter-claim and amended counter-claim, none of which were furnished by relator, such copies did not cure or waive defects in relator's petition for writ of mandate and prohibition, since it was duty of relators to complete record for purpose of bringing to attention of court omitted portions of record upon which they rely. p. 554.
Original action by Eldon C. Woods, as treasurer of Gibson County, and twenty-two others, for writ of mandate and prohibition against the Knox Circuit Court and Judge thereof. An alternative writ was issued.
Alternative writ dissolved and permanent writ denied.
McDonald McDonald and Robert J. Fair, of Princeton, Emison Emison, of Vincennes, and Albert Ward, of Indianapolis, for relators.
Arterburn Hart, Norman F. Arterburn, of Vincennes, and Sanford Trippet and Mark P. Lockwood, both of Princeton, for respondents.
Eldon C. Woods, as Treasurer of Gibson County, and twenty-two others, relators herein, filed this original action in this court against the respondent court and judge. They seek a permanent writ of mandate and prohibition. This court issued an alternative writ. The respondents' response and return has been filed, as has the relators' reply thereto.
Rule 2-35 of this court requires the relator in a proceeding of this kind to set out in his petition, or to exhibit therewith, certified copies of all pleadings, orders and entries pertaining to the subject-matter. This the relators have failed to do.
The rules of this court are binding alike upon all litigants and upon this court. If equal justice is to be administered, the rule must be impartially enforced. We 1. have consistently and repeatedly refused to issue writs of mandate or prohibition where there has been a failure to comply with this rule. State ex rel. Minton v. Parke Cir. Ct. (1948), 226 Ind. 55, 77 N.E.2d 749; State ex rel. Ketchum v. Marshall (1952), 231 Ind. 70, 106 N.E.2d 796; State ex rel. Wall v. Cass Circuit Court (1954), 233 Ind. 192, 117 N.E.2d 126; State ex rel. Dopkowski v. Murray (1952), 230 Ind. 634, 106 N.E.2d 100; Spires v. Bottorff (1952), 230 Ind. 230, 102 N.E.2d 761; Beaman v. State (1951), 230 Ind. 84, 101 N.E.2d 819; State ex rel. Ballew v. Smith (1952), 230 Ind. 422, 104 N.E.2d 575; Warmouth v. Owen (1951), 229 Ind. 279, 97 N.E.2d 866. There are many others.
In this matter the respondents have furnished certified copies of six paragraphs of counter-claim and amended paragraphs one to six inclusive of counter-claim, all of which are germane to 2. the subject-matter, and none of which were furnished by the relators. It is suggested that by so doing the respondents have waived any defect that might have been occasioned by the relators' failure to comply with the rule.
What view we might take of that situation under circumstances other than those presented here we need not decide. In this case the respondents were obliged to complete the record for the purpose of bringing to the attention of this court omitted portions of the record upon which they relied.
The alternative writ is dissolved and a permanent writ is denied.
Flanagan, C.J., Bobbitt, Emmert and Gilkison, JJ., concur.
NOTE. — Reported in 121 N.E.2d 880.