Baker v. Fisher

• Decision Date: 12 June 1973
• Docket Number: No. 673S115,673S115
• Citation: Baker v. Fisher, 296 N.E.2d 882, 260 Ind. 513 (Ind. 1973)
• Court: Indiana Supreme Court
• Parties: George P. BAKER et al., Appellants, Chicago, South Shore & South Bend Railroad Company, Defendant Below, v. Herman FISHER, Appellee. George P. BAKER et al., Appellants, v. Herman FISHER and Transport Motor Express, Inc., Appellees.

Page 882

296 N.E.2d 882

260 Ind. 513

George P. BAKER et al., Appellants,Chicago, South Shore & South Bend Railroad Company, Defendant Below, v.Herman FISHER, Appellee.

George P. BAKER et al., Appellants, v.Herman FISHER and Transport Motor Express, Inc., Appellees.

No. 673S115.

Supreme Court of Indiana.

June 12, 1973.

Harold Abrahamson, Kenneth D. Reed, Hammond, for appellants.

Vitold Reey, Gary, Herbert Fehner, Michigan City, for defendants.

Richard A. Mayer, Spangler, Jennings, Spangler & Dougherty, Gary, for appellees.

Paul Huebner, Hammond, for Herman Fisher.

HUNTER, Justice.

We have before us a Petition to Transfer which fails to meet the requirements for a petition to transfer established in A.P. 11(B).The grounds for transfer are contained in A.P. 11(B)(2) which reads as follows:

'(2) Errors upon which a petition to transfer shall be based may include:

(a) that the decision of the Court of Appeals contravenes a ruling precedent of the Supreme Court, indicating the ruling precedent, or

(b) that the decision of the Court of Appeals erroneously decides a new question of law, concisely stating the same, or

(c) that there is a conflict in the decision with another decision of another district of the Court of Appeals stating concisely the conflict and decision in which it occurs, or

(d) that the decision of the Court of Appeals correctly followed ruling precedent of the Supreme Court, but that such ruling precedent is erroneous or is in need of clarification or modification, or

(e) that the decision of the Court of Appeals fails to give a statement in writing of each substantial question arising on the record and argued by the parties.If this error is relied upon, the petition shall set forth such portions of the record so as to affirmatively disclose such failure, and establish that petitioner was prejudiced thereby.'

This Court can still consider a Petition to Transfer which does not fall within the categories established in A.P. 11(B)(2).Troue v. Marker(1969), 253 Ind. 284, 252 N.E.2d 800.However, consideration of such a petition should be a rare occurrence, and should be done only where a special need has been demonstrated.The grounds for transfer are relatively inclusive and permit consideration of most any important question which might arise.Parties seeking transfer should make a concerted effort to frame their arguments in terms of these established categories.If a party finds it impossible to urge its point within these categories, he should so state, explaining why it is impossible to do so and why the Supreme Court should still consider his Petition to Transfer.

The petition in the case at bar is not addressed to any of the grounds contained in A.P. 11(B)(2).Petitioner must allege facts with ample particularity to bring his petition within one of the stipulated grounds for transfer.City of Hobart v. Baum(1957), 237 Ind. 316, 145 N.E.2d 573;Pittsburgh C.C. & St. L. Ry. v. Hoffman(1928), 200 Ind. 178, 162 N.E. 403;American Quarries Co. v. Lay(1906), 166 Ind. 234, 76 N.E. 517, In re Aurora Gaslight Coal & Coke Co.(1917), 186 Ind. 690, 115 N.E. 673.The petition before us merely states in general terms that the Court of Appeals erred in connection with that court's determination of the facts.Such a petition presents no issues to this Court and should therefore be dismissed.

Other difficulties have arisen in the construction of recent Petitions to Transfer.One such problem is the failure to meet the following language of A.P. 11(B)(1)(d):

'(S)pecify with particularity wherein the Court of Appeals committed error and the circumstances giving rise to such error.'

Frequently 'particularity' is sadly lacking with no reference being made to that portion of the Court of Appeals' opinion considered to be erroneous.

Another problem...