Curless v. Watson

Decision Date25 July 1913
Docket NumberNo. 22,422.,22,422.
Citation180 Ind. 86,102 N.E. 497
PartiesCURLESS et al. v. WATSON.
CourtIndiana Supreme Court


Appeal from Circuit Court, Wells County; Charles E. Sturges, Judge.

Action by James H. Watson against Ada E. Curless and another. From a judgment for plaintiff, defendants appealed to the Appellate Court, where the judgment was affirmed (100 N. E. 576), and, a petition for rehearing having been overruled, appellants petitioned for a transfer of the cause to the Supreme Court, as authorized by Acts 1901, c. 247 (Burns' Ann. St. 1908, § 1394, cl. 2). Petition to transfer denied.St. John, Charles & Gemmill, of Marion, and Simmons & Dailey, of Bluffton, for appellants. Blacklidge, Wolf & Barnes, of Kokomo, for appellee. Evan B. Stotsenburg and John H. Weathers, both of New Albany, William V. Rooker and Ulric Z. Wiley, both of Indianapolis, and John D. Welman, of Evansville, amici curiæ.


An action was brought in the Grant circuit court by appellee, against appellants, to foreclose a street improvement lien, and on change of venue was transferred to the Wells circuit court. From a judgment for plaintiff, appellants prosecuted an appeal to the Appellate Court, which affirmed the judgment. Curless v. Watson, 100 N. E. 576. A petition for rehearing was filed and overruled, and appellants thereupon prepared a petition, in all respects conforming to the provisions of clause 2, § 10, of the Acts of 1901, providing for the transfer of causes from the Appellate Court. Acts 1901, p. 565 (section 1394, cl. 2, Burns' 1908). Appellants presented this petition, for filing, to the clerk of this court on -, 1913, and within 30 days after the petition for rehearing had been overruled by the Appellate Court.

At the 1913 session of the General Assembly, an act was passed purporting, among other things, to repeal section 10 of the act of 1901, supra. Acts 1913, c. 166, p. 454. This act went into effect March 10, 1913. Appellant contends that the act of 1913, in so far as it purports to repeal the transfer act, is unconstitutional and void. This cause presents to this court two principal propositions: First. Are Acts 1913, c. 166, p. 454, within the power of the Legislature to enact? Second. Is the Legislature authorized to create a court with powers over appeals, from inferior courts, such as is, by the Constitution, lodged in the Supreme Court?

Many briefs have been filed in this cause by appellant, appellee, and friends of the court, in which are discussed every question of the right of appeal, the jurisdiction of the Supreme Court in appeals, the right to appeal from the Appellate Court to this court, and the constitutional authority of the Legislature to limit by regulation and restriction the right to appeal.

The Constitution of this state declares that: “The judicial power of the state shall be vested in the Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” As amended March 14, 1881, section 1, art. 7, Constitution of Indiana, being section 161, Burns' Ann. Stat. 1908.

The Constitution provides, further: “The Supreme Court shall consist of not less than three, nor more than five judges,” etc. Section 2, art. 7, Constitution of Indiana; section 162, Burns' Stat. 1908.

The Constitution provides further: “The Supreme Court shall have jurisdiction coextensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the General Assembly may confer.” Section 4, art. 7, Constitution of Indiana; section 164, Burns' 1908.

[1] It is well-settled principle of law that appeal is a matter of legislative discretion, under that provision of section 4, supra, which provides that the Legislature may regulate and restrict appeals, and has been so decided many times by this court and the courts of other states having a similar provision in their Constitution. The Constitution of this state does not grant to any one the right to an appeal to this court, or any other court. Amacher v. Johnson, 174 Ind. 249, 253, 91 N. E. 928, and cases cited; Sullivan v. Haug, 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263;Lake Erie, etc., Co. v. Watkins, 157 Ind. 600, 605, 62 N. E. 443, and cases cited; Randolph v. City of Indpls. (1909) 172 Ind. 510, 88 N. E. 949;Barnes v. Wagener (1907) 169 Ind. 511, 82 N. E. 1037;Brown v. Brown (1907) 168 Ind. 654, 80 N. E. 535;Evansville, etc., Ry. Co. v. City of Terre Haute, 161 Ind. 26, 67 N. E. 686;Kepler v. Rinehart, 162 Ind. 504, 70 N. E. 806;Board v. Albright, 168 Ind. 654, 81 N. E. 578;Hughes v. Parker, 148 Ind. 692, 48 N. E. 243;Newman v. Gates, 150 Ind. 59, 49 N. E. 826;Sims v. Hines, 121 Ind. 534, 23 N. E. 515;Rupert v. Martz, 116 Ind. 72, 18 N. E. 381;Branson v. Studabaker, 133 Ind. 147, 33 N. E. 98;Board v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Ex parte Sweeney, 126 Ind. 583, 27 N. E. 127;Brown v. Porter, 37 Ind. 206;State v. Vierling, 33 Ind. 99;Parke Co. v. Lease, 22 Ind. 261;Hornburger v. State, 5 Ind. 300;Clarke v. Bazedone, 1 Cranch, 212, 2 L. Ed. 85;Durousseau v. U. S., 6 Cranch, 307, 3 L. Ed. 232;Daniels v. Ry. Co., 3 Wall. 250, 18 L. Ed. 224; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264.

At the time of the adoption of our present Constitution, “appeals” and “writs of error” were well understood by the constitutional convention, when they fixed the jurisdiction of the Supreme Court as being “the right to correct the judgment of an inferior court by appeals in equity causes, and by writs of error in other cases; and in the adoption of the Constitution employed the terms as they then existed. Cooley, Const. Lim. (5th Ed.) 47; Durham v. State, 117 Ind. 477, 19 N. E. 327;State ex rel. Hovey v. Noble et al., 118 Ind. 350, 361, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143. It is also a very reasonable rule that a state Constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still in force. By this we do not mean that the common law is to control the Constitution, or that the latter is to be warped or perverted in its meaning, in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system which is to remain in force and be administered, but under such limitations and restrictions as that instrument imposes.” Cooley, Const. Lim. (5th Ed.) p. 73; Durham v. State ex rel. Anderson, 117 Ind. 477-480, 19 N. E. 327.

Judge Elliott in State ex rel. Hovey v. Noble et al., supra, 118 Ind. on page 361, 21 N. E. page 248, 4 L. R. A. 101, 10 Am. St. Rep. 143, quotes with approval from Webster as follows: “Written Constitutions sanctify and confirm great principles, but the latter are prior in existence to the former.”

[2] There can be no misunderstanding as to the term “Jurisdiction”; therefore it is useless to explain what is meant thereby, except to say that it is the legal right by which judges exercise their authority. When the Constitution was adopted, jurisdiction had a definite meaning, and was understood to relate to authority.

[3] In section 4, art. 7, of our Constitution the Supreme Court was given jurisdiction over appeals and writs of error (our italics). Writs of error had a definite meaning then, and have yet, viz.: “A writ authorizing an appeal from an inferior court, assigning error in the proceedings as relating only to matters of law, arising upon the face of the proceedings so that no evidence is required to substantiate or support it.” The Constitution authorizes the Legislature to make such regulation and restrictions as it might see fit. Section 4, art. 7, Const. Ind. This the Legislature has done from time to time by providing rules as to the transfer of cases from other courts to the Supreme Court, and this takes the place of the constitutional “appeals” and “writs of error.”

The question has been presented to the court in this case, “Has the writ of error been abolished in this state?” This question cannot be important, for the reason that our statutory appeal takes its place, and makes full provision for the transfer of cases to this court, in every case which the Legislature has thought proper to be reviewed on appeal. It makes no difference in what manner a case may be transferred for review so long as the Legislature under its power to regulate and restrict “appeals” and “writs of error” has made some provision. The real question is, not how appeals may reach a higher court, but what court or what tribunal shall have final jurisdiction in appeals and writs of error? It is well settled that where the power to issue writs has been fixed by the Constitution in a certain tribunal, the Legislature cannot divest that tribunal of that power. Harrison v. Tradee and Wife, 27 Ark. 59;Martin v. Simpkins, 20 Colo. 438, 442, 38 Pac. 1092;People v. Richmond et al., 16 Colo. 274, 282, 283, 26 Pac. 929. The Legislature has the right to call the writ of error “an appeal,” or “certiorari,” and provides the manner and condition for taking the appeal to the Supreme Court, but when that is done their powers and duties are at an end. If the Legislature has the constitutional authority to vest the Appellate Court with final jurisdiction in appeals, the question of what appeals, or in what cases, the Appellate Court may be given jurisdiction cannot be questioned by this court. So that the question at issue is not what cases may be appealed to the Appellate Court, but can the Legislature vest the Appellate Court with complete and final jurisdiction to review cases under appeals or writs of error, without being...

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