American Quarries Co. v. Lay

• Decision Date: 02 January 1906
• Docket Number: No. 5,009.,5,009.
• Citation: American Quarries Co. v. Lay, 166 Ind. 234, 76 N.E. 517 (Ind. 1906)
• Parties: AMERICAN QUARRIES CO. v. LAY.
• Court: Indiana Supreme Court

166 Ind. 234

76 N.E. 517

AMERICAN QUARRIES CO.

v.LAY.

No. 5,009.

Supreme Court of Indiana.

Jan. 2, 1906.

Appeal from Circuit Court, Lawrence County, Jas. B. Wilson, Judge.

Action by James Lay against the American Quarries Company. On affirmance by the Appellate Court of a judgment in favor of plaintiff (73 N. E. 608), defendant petitions for a transfer of the cause to the Supreme Court, under Burns' Ann. St. 1901, § 1337j, subd. 2. Petition denied.

J. H. Underwood, E. C. Field, and H. R. Kurrie, for appellant J. H. Edwards and H. P. Pearson, for appellee.

JORDAN, J.

This cause having been decided by the Appellate Court adversely to appellant, the latter has filed a petition praying the transfer thereof to the Supreme Court. The petition, or application, omitting the formal parts, is as follows: “The appellant in the above cause hereby petitions for the transfer of said cause to the Supreme Court of the state of Indiana, on account of error in the decision of said cause in the Appellate Court. Subdivision 2 of section 1337j, Burns' Ann. St. 1901, provides that “said party may *** file in the Supreme Court an application for the transfer of the case to the Supreme Court on the grounds (1) that the opinion of said division of the Appellate Court contravenes a ruling precedent of the Supreme Court; (2) or that a new question of law is directly involved and was decided erroneously. The application shall state with particularity the ground or grounds relied on.” It is manifest that the petition or application in this case wholly fails to comply with the provisions of the above statute, for it states neither of the grounds therein provided for the transfer of a case, and for this reason alone the petition must be denied.

An application to remove a case under this statute does not perform the office of an appeal from the Appellate to the Supreme Court, and in considering such applications the latter court is not required or authorized by the statute in question to examine the record in the case in order to determine whether the ground or grounds stated in the petition or application are sustained. But in deciding this question the court is limited or confined to the written opinion of the Appellate Court given in the particular case. City of Huntington v. Lusch, 163 Ind. 266, 71 N. E. 647, and cases there cited. It will be observed that the statute in question declares in express and positive language that “the application shall state with particularity the ground or grounds relied on.” This declaration or expression makes it evident, we think, that the Legislature intended that the petitioner should be required to state in his petition, not only the general ground or grounds mentioned in the statute and relied upon for a transfer, but...