Craig v. Bennett

• Decision Date: 18 December 1901
• Docket Number: 3,700
• Citation: 62 N.E. 273,158 Ind. 9
• Parties: Craig v. Bennett
• Court: Indiana Supreme Court

62 N.E. 273

158 Ind. 9

Craig v. Bennett

No. 3,700

Supreme Court of Indiana

December 18, 1901

From Marshall Circuit Court; A. G. Wood, Special Judge.

A judgment in favor of defendant was affirmed by the Appellate Court without a written opinion (27 Ind.App. 704) and appellant makes application for the transfer of the cause to the Supreme Court.

Application denied.

J. D McLaren, for appellant.

S Parker and C. P. Drummond, for appellee.

OPINION

Jordan, C. J.

Appellant in the above cause has filed and presented his application whereby he seeks to have the appeal transferred from the Appellate to the Supreme Court. In his application he alleges the following facts: On May 8, 1901, the Appellate Court affirmed the judgment below without giving any opinion in writing whereby the reasons of the court for the judgment of affirmance are disclosed. On the 11th day of October following, that court denied appellant's petition for a rehearing. On November 6th he filed his application in question on the grounds: (1) "That the decision of the Appellate Court in affirming the judgment contravenes ruling precedents or decisions of the Supreme Court, namely Davis v. Cox, 6 Ind. 481, and Popijoy v. Miller, 133 Ind. 19, 32 N.E. 713"; and, (2) "that a new question of law is directly involved in the cause, and that said question was decided erroneously by the Appellate Court."

The applicant, in his argument in support of his application, makes the following statement: "The Appellate Court not having handed down an opinion with its decision affirming the judgment, nor with its decision overruling appellant's petition for rehearing, we are left in ignorance of the grounds and authorities upon which it predicated its decision." Under the circumstances, we are equally as ignorant in respect to the grounds and authorities upon which the judgment or decision of the Appellate Court is based as is the applicant or his counsel. We are urged, however, to consider the facts and questions as presented by the record, and the authorities cited by the respective parties in their briefs filed in the Appellate Court, and upon these determine the questions involved, and order the transfer of the cause to the docket of this court, in pursuance of subdivision 2 of § 10 of an act of the legislature entitled "An act concerning appeals," etc., approved March 12, 1901, Acts 1901, p. 565, § 1337j Burns 1901, § 6565f Horner 1901, which provides as follows: "If a petition for a rehearing is filed by any losing party in any case in either of said divisions of the Appellate Court and said petition is overruled, the clerk of said court shall not certify the opinion and judgment in said case to the lower court until the expiration of thirty days from the date of said ruling. Said party may, at any time within thirty days after his petition for a rehearing has been overruled, file in the Supreme Court an application for the transfer of the case to the Supreme Court on the ground that the opinion of said division of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided erroneously."

It is evident, we think, that, when tested by the statute under which the transfer of this cause is requested, the application must be denied, for the reason that there is no opinion or statement in writing on the part of the Appellate Court, disclosing its views in regard to the law as applied by it to the case, or detailing the reasons on which the judgment of affirmance is based. In Barnett v. Bryce Furnace Co., 157 Ind. 572, 62 N.E. 6, we said: "The plain purpose of the subdivision in question, however, was not to give this court jurisdiction to determine whether the facts in cases which are not appealable here as a matter of right have been correctly understood and stated by the Appellate Court, but to authorize this court to control the declaration of legal principles."

By § 13 of the act by which the Appellate Court was originally created, Acts 1891, p. 39, it was provided: "In every case reversed, an opinion shall be given upon the material questions therein in writing, stating the reasons, and judgment shall be entered with directions therein to the lower court, as required of the Supreme Court in such cases, and the opinion and judgment shall be certified to the court below." Section 17 of the act of 1901, Acts 1901, p. 570, provides: "In every case reversed by a division of the Appellate Court, an opinion shall be given on the material questions therein in writing, and the appropriate judgment shall be entered with directions to the lower court," etc.

It must be evident that this section of the statute of 1901, which section is virtually a substitute for § 13 of the act of 1891, makes it the duty of the Appellate Court to give and file a written opinion on each material question involved and duly presented in the appeal, only when the judgment of the trial court is reversed. If the judgment is affirmed, the court is not, under the law, required to give a written...