Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Natta

• Decision Date: 10 June 1909
• Docket Number: 6,296
• Citation: 87 N.E. 999,44 Ind.App. 608
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. VAN NATTA ET AL
• Court: Indiana Appellate Court

87 N.E. 999

44 Ind.App. 608

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. VAN NATTA ET AL

No. 6,296

Court of Appeals of Indiana

June 10, 1909

44 Ind.App. 608. At 612.

Original Opinion of April 2, 1909, Reported at: 44 Ind.App. 608.

Overruled.

OPINION

ON PETITION FOR REHEARING.

ROBY P. J.

Appellant's petition for a rehearing contains the following naive statement:

"Error in giving instructions.

"The court, in the opinion in this case, disposes of this question quite summarily by saying: 'The instructions given considered together, are not misleading nor confusing, and they fairly state the law.' We may presume that the judges concurring in the opinion, accepted the above statement as correct. There are at least two members of this court who could not have concurred in the opinion without disregarding their own opinions in cases involving the same question, if the learned judge writing the opinion had made an abstract of the instructions to which we objected. We regret that he did not do so, and we hope that in the event the petition for rehearing shall be overruled an abstract of the instructions complained of may be made, so that, in the event of an application for transfer to the Supreme Court the question of their sufficiency may be reviewed."

The learned author apparently considers this court as a committee whose principal function is to prepare cases for decision by the Supreme Court. The purpose of the formation of the Appellate Court was, as is well known, to facilitate the decisions of appeals. Section seventeen of the act of March 12, 1901 (Acts 1901, p. 565, § 1401, Burns 1908), is, in part, as follows: "In every case reversed by a division of the Appellate Court, an opinion shall be given on the material question therein in writing, and the appropriate judgment shall be entered with directions to the lower court." It will be observed that the act does not provide for any written opinion where the judgment of the trial court is affirmed. The function of every court is to hear and determine, and it was intended that decisions made by the Appellate Court should be final, except only in those cases where an appeal as of right was given. Acts 1901, p. 565, § 15, § 1399 Burns 1908. The right to file an application for transfer to the Supreme Court is expressly restricted to two grounds, viz., that the opinion contravenes a ruling precedent, or that a new...