CONCURRING OPINION
Bobbitt, J.I feel impelled to state briefly my reasons for concurring in the result of the majority opinion.
*210Acts 1955, ch. 253, §1, p. 647, being §3-2201, Burns’ 1959 Cum. Supp., reads in part as follows:
“. . . writs of mandate may issue out of the Supreme Court to the circuit, superior, criminal, probate, juvenile, conservancy district or municipal courts of this state, respectively, compelling the performance of any duty enjoined by law upon such [court]. . . .”
Acts 1911, ch. 223, §2, p. 541, being §3-2202, Burns’ 1946 Replacement, reads as follows :
“The action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust or station.”
Mandamus is an extraordinary writ which may be issued by this court only to compel the performance of a clear and absolute duty. State, ex rel. Cassel v. Johnston (1933), 204 Ind. 563, 570, 185 N. E. 278. It will be issued only in cases where the facts show a clear legal right on the part of the relator to the relief sought, and a clear legal duty resting on respondent (defendant) to do and perform the thing demanded. State, ex rel. v. Foland, Auditor (1921), 191 Ind. 342, 349, 132 N. E. 674; McDonald v. State, ex rel. (1931), 202 Ind. 409, 415, 175 N. E. 276; State, ex rel. v. Wirt (1932), 203 Ind. 121, 140, 177 N. E. 441.
Mandamus may not be used to control judicial discretion. State, ex rel. v. Hall (1921), 191 Ind. 271, 278, 131 N. E. 821; State ex rel. Benson v. Superior Court (1933), 205 Ind. 464, 468, 187 N. E. 203; State ex rel. Tomlinson v. Jeffrey (1952), 231 Ind. 101, 103, 107 N. E. 2d 1; State ex rel. Beatty v. Nichols, Spec. J. etc. (1954), 233 Ind. 432, 434, 120 N. E. 2d 407; State ex *211rel. Allison v. Criminal Ct. of Marion County, etc. (1958), 238 Ind. 190, 149 N. E. 2d 114, 115.
While relatrix has pursued the proper remedy (See: State ex rel. Ward v. Porter C. C., Conover, Sp. J. (1955), 234 Ind. 573, 130 N. E. 2d 136), she has, nevertheless, failed to sustain her burden of showing that she was legally entitled to the relief sought and that it was the clear and absolute duty of respondent court to grant the relief which she demands.
This court recently held in State ex rel. Grecco v. Allen Circuit Court (1958), 238 Ind. 577, 153 N. E. 2d 914, 917, that
“. . . the duty of the trial court to furnish to an indigent a transcript of the evidence without charge for use on appeal as provided by statute is not unconditional but a showing must be made to the trial court not only that (1) the accused does not have sufficient means to procure a transcript, but also (2) that the merits of the questions to be raised on appeal cannot be considered without a transcript of the evidence, and (3) that questions of error were presented to the trial court in his motion for new trial by which this court could review the merits of the cause on appeal.”
■In the above case relator had, by his verified petition for writ of mandate, made a prima facie case showing that he was a poor person desiring to appeal his case to this court and was without “sufficient means to procure the transcript.”1 No evidence was heard by the trial court and on the record before us in that case, the prima facie case was not rebutted. Under these circumstances relator was legally entitled to the relief sought and a clear and absolute duty under the statute,1 rested upon respondents to grant the relief demanded. Hence, we granted the writ of mandate.
*212In State ex rel. Ward v. Porter C. C., Conover, Sp. J., supra (1955), 234 Ind. 573, 130 N. E. 2d 136, which was also a petition for writ of mandate to require respondent court to furnish to relator a transcript for appeal to this court as a “poor person,” the trial court had found that relator was a “poor person” and provided him with counsel at his trial. The undisputed evidence showed that, at the time of the filing of his petition to be furnished a transcript at county expense, there had been no change in relator’s (petitioner’s) circumstances. Under this factual situation respondent in that case was legally entitled to the relief sought and there was a clear and absolute duty resting upon respondent court to grant the same. Acts 1893, ch. 33, §1, p. 32, being §4-3511, Burns’ 1946 Replacement.
The present case is clearly distinguishable from the two cases mentioned above. Here relatrix has not only failed to show that she is legally entitled to the relief which she is seeking, but has also failed to show that there is a clear and absolute duty resting upon respondents to grant the relief which she demands.
For the foregoing reasons this then is not a case in which this court may issue a writ of mandate.
Jackson, J., concurs.Note. — Reported in 162 N. E. 2d 445.
. Acts 1893, ch. 33, §1, p. 32, being §4-3511, Burns’ 1946 Replacement.