| In re Petitions To Transfer Appeals From Appellate Court To Supreme Court

• Decision Date: 29 January 1931
• Parties: In re Petitions to Transfer Appeals from Appellate Court to Supreme Court
• Court: Indiana Supreme Court

174 N.E. 812

202 Ind. 365

In re Petitions to Transfer Appeals from Appellate Court to Supreme Court

Supreme Court of Indiana

January 29, 1931

Concurring Opinion Filed February 12, 1931. [Copyrighted Material Omitted]

Petitions to transfer to the Supreme Court the foregoing appeals which were transferred to the Appellate Court under chapter 123 Acts 1929. 25486 13659 Arnold, Paul, v. State 89 Ind.App. 588, 166 N.E. 446

25365 13630 Boston, George, v. State 89 Ind.App. 583, 166 N.E. 448

25352 13633 Brown, Omar, v. State 92 Ind.App. 131, 167 N.E. 550

25261 13621 Busch, Bernard, v. State 92 Ind.App. 122, 165 N.E. 560, 167 N.E. 144

25518 13900 Davis, Charles, v. State 90 Ind.App. 714, 168 N.E. 925

25678 13755 Doench, Arthur, v. State 90 Ind.App. 609, 168 N.E. 494

25521 13677 Duvall, John, v. State 92 Ind.App. 134, 166 N.E. 603

25468 13706 Eichoff, Peter, v. State 89 Ind.App. 606, 166 N.E. 445

25408 13650 Foster, John, v. State 89 Ind.App. 586, 166 N.E. 447

25729 13783 Hall, Helen, v. State 90 Ind.App. 718, 168 N.E. 925

25730 13784 Hall, Helen, v. State 90 Ind.App. 548, 168 N.E. 127

25173 13609 Hantz, Steve & Thresa v. State 92 Ind.App. 108, 166 N.E. 439 25005 13591 Holton, Lee, v. State 89 Ind.App. 494, 165 N.E. 921

25373 13637 Isabel, Thomas, v. State 90 Ind.App. 131, 166 N.E. 304

25243 13626 Jones, William, v. State 89 Ind.App. 564, 166 N.E. 158

25324 13632 Kappes, George, v. State 89 Ind.App. 344, 166 N.E. 298

25436 13644 Krivokucha, Sam, v. State 89 Ind.App. 468, 165 N.E. 783, 166 N.E. 773

25631 13676 Linzie, Paul, v. State 89 Ind.App. 569, 166 N.E. 294

25471 13663 McSwain, Commodore, v. State 89 Ind.App. 592, 166 N.E. 444, 167 N.E. 568

13741 Michaelree, David, v. State 92 Ind.App. 147, 168 N.E. 27

13743 Moore, C. Eugene, v. State 92 Ind.App. 150, 168 N.E. 202

25275 13627 Renz, Arthur, and Kazel, Albert, v. State 92 Ind.App. 129, 166 N.E. 775

25582 13667 Seibert, Edwin, v. State 89 Ind.App. 604, 166 N.E. 256, 167 N.E. 542

25158 13598 Sovich, Michael, v. State 92 Ind.App. 103, 167 N.E. 145

25682 13729 Stengnach, Ralph, v. State 89 Ind.App. 486, 165 N.E. 919

24951 13582 Stevens, James, and Allen, Samuel, v. State 92 Ind.App. 102, 165 N.E. 781

25379 13639 Thompson, Guy, v. State 89 Ind.App. 547, 166 N.E. 23

25590 13681 Thompson, Guy, v. State 89 Ind.App. 555, 167 N.E. 345

25273 13624 Thompson, Guy, v. State 89 Ind.App. 541, 167 N.E. 347

25787 13932 Worsdorfer, Matthew, v. State 90 Ind.App. 441, 169 N.E. 63

14065 Robbins, Thomas, v. State 92 Ind.App. 155, 172 N.E. 504

Petitions denied.

J. Frank Adams and Bernard C. Craig, for petitioner Michaelree.

Anderson & Mayfield, for petitioner Linzie.

Walter R. Arnold, for petitioner Hantz.

Herbert S. Barr and Arthur E. Letsinger, for petitioners Krivokucha, Stegnach and Sovich.

James L. Bottorff, for petitioner Holton.

Hawley O. Burke and Owen S. Boling, for petitioners Stevens and Allen.

Christian & Waltz and Worth H. Castor, for petitioner Moore.

Clarence R. Cowger and Glenn R. Slenker, for petitioner Davis.

Q. Austin East, Register & Register, John P. O'Donnell and Edwin Corr, for petitioners Hall and Isabel.

Richard L. Eubank, for petitioner Kappes.

William D. Hardy, for petitioners Arnold, Boston, Doench, Eichoff, Foster, Jones, McSwain, Seibert, Thompson and Worsdorfer.

Olin R. Holt, for petitioner Brown.

William V. Rooker, for petitioner Duvall.

George Sands, for petitioners Renz and Kazel.

Walterhouse & Miller, for petitioner Busch.

Hugh D. Wickens, for petitioner Robbins.

James M. Ogden, Attorney-General, Samuel R. Artman, Assistant Attorney-General, George W. Huffsmith, Merl M. Wall and V. Ed Funk, Deputy Attorney-Generals, and Harry L. Gause, of Counsel, for the appellee, State of Indiana.

William H. Thompson, Thomas D. Stevenson, Albert L. Rabb and Arthur L. Gilliom as Amici Curiae, pro se.

Martin, J. Myers, C.J., and Travis, J., concur in the result.

OPINION

Martin, J.

Section 1, ch. 123, Acts 1929, § 2377.1 Burns Supp. 1929, provides:

"That the jurisdiction of all appeals now pending, or hereafter taken in criminal cases, where the penalty or punishment is not death, or imprisonment in the Indiana State Prison or the Indiana Reformatory is hereby vested in the Appellate Court until January 1, 1931, after which time the jurisdiction of all such appeals shall be in the Supreme Court. All such appeals pending in the Appellate Court on January 1, 1931 shall be transferred to the Supreme Court. The decisions of the Appellate Court in such cases shall be final and conclusive and not subject to an appeal or petition to transfer to the Supreme Court."

The appeals of all the petitioners are from judgments for misdemeanors imposing fines and/or imprisonment for short terms. All (except four) ^[1] of these appeals were pending in the Supreme Court on March 12, 1929, the date on which the law quoted above became effective. The appeals, being within the class of cases covered by that law, were thereafter transferred to the Appellate Court, where they have been decided.

PETITIONERS FAILING TO TAKE ACTION IN THE SUPREME COURT WITHIN SIXTY DAYS AFTER IT TRANSFERRED CASES TO APPELLATE COURT CANNOT THEREAFTER FILE MOTION TO SET ASIDE ORDER OF TRANSFER.

Upon the transfer of the appeals to the Appellate Court, none of the appellants (except Robbins), filed any motion to set aside such order. Five of the appellants (Boston, Isabel, Kappes, Stevens and Allen) argued their cases orally in the Appellate Court and, after the several judgments were affirmed by that court, 18 appellants (Arnold, Boston, Brown, Busch, Eichoff, Foster, Hall, Holton, Isabel, Jones, Krivokucha, Linzie, McSwain, Seibert, Stegnach, Stevens and Allen and Thompson [in No. 25,379]) filed petitions for rehearing therein. The remaining appellants whose cases had been transferred to the Appellate Court (Davis, Doench, Hantz, Kappes, Sovich, Thompson [in No's. 25,273 and 25,590] and Worsdorfer), as well as those last above enumerated, then filed petitions in the Supreme Court asking this court to set aside its order transferring their cases to the Appellate Court and to re-transfer and redocket their cases. None of these appellants (except Robbins, as hereinbefore noted) filed such petitions within 60 days after the action of the Supreme Court in transferring their cases to the Appellate Court, but waited until after action was taken by that court which was unfavorable to them--in some instances as long as nine or 10 months.

A motion to set aside an order transferring an appeal from the Supreme Court to the Appellate Court, is, in effect, a petition for a rehearing, and must, under the rules of the Supreme Court, be filed within 60 days from the time the Supreme Court made the order. McCutcheon v. State (1924), 194 Ind. 560, 143 N.E. 625. The acts of 18 or more of the appellants taken in the Appellate Court were sufficient to estop them from challenging the jurisdiction of that court over their persons, Ledgerwood v. State (1893), 134 Ind. 81, 33 N.E. 631, but such acts would not prevent them from challenging the jurisdiction of that court over the offense or subject-matter, which may be done at any time. Pease v. State (1921), 74 Ind.App. 572, 129 N.E. 337. However, since the transfer of a case by the Supreme Court to the Appellate Court is a determination that the jurisdiction of the subject-matter thereof is in the Appellate Court, the question of the jurisdiction of the Appellate Court over the subject-matter had already been decided by the Supreme Court, and no action had been taken by appellants within the proper time to have that decision set aside.

Question properly presented in three appeals.

In the appeal of Robbins, the appellant, within the proper time, filed a petition asking this court to vacate its order transferring that appeal to the Appellate Court and to order the cause retransferred to this court. The appeals of Michaelree and Moore were never in the Supreme Court, and the petitions of those appellants ask that their cases be transferred to this court. In these three appeals, the questions sought to be presented are properly before the court. § 4, Art. 7, Constitution does not prohibit the legislature from conferring upon the Appellate Court by ch. 123, Acts 1929 final jurisdiction in a limited class of cases (misdemeanors). Ex Parte France, 176 Ind. 72, 95 N.E. 515 and Curless v. Watson, 180 Ind. 86, 102 N.E. 497 distinguished.

The basis of the prayers of all the several petitioners (and the points raised by all of them will be considered), is their contention that ch. 123, Acts 1929 is invalid because, in the cases regulated thereby (appeals in minor criminal prosecutions), it is provided that the decision of the Appellate Court shall be final and not subject to an appeal or petition to transfer to the Supreme Court. Petitioners say that if a right of appeal is given by statute in this state, such right cannot be limited to an appeal to the Appellate Court, but that every appellant is entitled to a final review of his case in the Supreme Court (or at least to a review of the statements of law made by the Appellate Court in its decision, if not of the case as a whole). To support their contentions, petitioners rely upon the provisions of § 4, Art. 7, Constitution, § 171 Burns 1926, and upon the cases of Ex parte France (1911), 176 Ind. 72, 95 N.E. 515, and Curless v. Watson (1913), 180 Ind. 86, 102 N.E. 497.

The right of appeal is not an inherent or inalienable right. ^[2] It is expressly guaranteed by some constitutions, but it is usually a right created by statute. Section 4, Art. 7 Constitution (§ 171 Burns 1926) provides that "the Supreme Court shall have jurisdiction...