Ex parte Sweeney

• Decision Date: 10 March 1891
• Citation: 126 Ind. 583,27 N.E. 127
• Parties: Ex parte Sweeney.
• Court: Indiana Supreme Court

126 Ind. 583

27 N.E. 127

Ex parte Sweeney.

Supreme Court of Indiana.

March 10, 1891.

On February 28, 1891, the legislature of Indiana passed an act entitled “An act to create an appellate court, and define its jurisdiction and procedure, and declaring an emergency.” Section 1, which defines its jurisdiction, is given in the opinion. Section 19 provides: “When the appellate court shall be organized and ready to proceed with business, the supreme court shall, by an order entered upon its record, transfer to it all cases then pending in such supreme court of the nature and description of those of which jurisdiction is by this act given to said appellate court.” Under this provision, Andrew M. Sweeney, clerk of the supreme court, applied to it for its opinion touching the cases to be transferred to the appellate court.

Elliott, J.

The petition of the clerk requires an examination of the act approved February 28, 1891, creating an appellate court. It is so evident that the act recognizes the general and superior appellate jurisdiction of the supreme court that little else is required than the bare statement that the appellate authority not expressly or impliedly vested in the newly-created tribunal remains where the constitution and the law place it, in the supreme court of the state. The act does not assume to define appellate jurisdiction generally; it simply assumes to define the jurisdiction of the appellate court; thus leaving all the appellate jurisdiction not conferred upon that tribunal in the original court of appellate jurisdiction. It carves out of the general appellate jurisdiction of the state a part, and transfers it to the court it creates. It takes from a great field designated parts, leaving all other parts where they originally belonged. What is not expressly or by necessary implication transferred to the new tribunal abides in the old. Where, therefore, the exercise of appellate power is invoked by appeal, the jurisdiction is in the supreme court in all cases except those specified in the act. In other words, if the case is one of appellate cognizance, and it does not fall within one of the classes over which the appellate court is given jurisdiction, it is within the jurisdiction of the supreme court. This principle must rule in giving a construction to the act, and hence it is only necessary to ascertain and decide what classes of cases are declared to be within the jurisdiction of the newlycreated court.

It is not our purpose, we may say by way of preface, to do more than outline the classes of cases which fall within the jurisdiction of the appellate court, and are required to be transferred to its docket; for it is probable that cases may arise which cannot be classified without a more thorough consideration and investigation than it is now proper or necessary for us to give the subject. It will conduce to clearness and certainty to affirm at the outset that no constitutional question can be entertained or decided by the appellate court, for the provisions of section 1 exclude such questions from its jurisdiction. Where, therefore, the constitutionality of any statute, federal or state, is in issue, the jurisdiction is exclusively in the supreme court. In classifying and outlining, as we shall presently do, the classes of cases of which the appellate court is given jurisdiction, we proceed from first to last upon the theory that no case in which the validity of a statute is involved is within the jurisdiction of that court. What we say is always to be taken as meaning that the classes named are within its jurisdiction, except where a constitutional question is involved. Although we do not note the exception in naming each class, it is to be understood that each class is subject to the exception. This course we adopt, it may be said by way of explanation, to obviate the necessity of repeating, as each class is outlined, the proposition that it is subject to the exception created by the clause excluding from the jurisdiction of the appellate court all constitutional questions. It may also be said, although a little aside from our direct path, that we do not intimate, directly or indirectly, any opinion upon the question whether the legislature can take from the highest constitutional court of the state the authority to pronounce the ultimate judgment upon the constitutionality of statutes.

As we have entered upon the subject of cases involving the validity of statutes, it is, perhaps, quite as well to continue its consideration so far as to indicate the instances in which such a question can be regarded as presented by the record. It must, of course, be presented by the record brought to the court, for appellate courts have jurisdiction of such questions only as the record presents. Neither by agreement nor by assertion of parties or counsel can jurisdiction of a subject be conferred upon a court, for jurisdiction of the subject invariably comes from the law. Board v. Newman, 35 Ind. 10;Crane v. Farmer, (Colo.) 23 Pac. Rep. 455;Smith v. Myers, 109 Ind. 1. 9 N. E. Rep. 692; Robertson v. State, 109 Ind. 79, 10 N. E. Rep. 582, 643; Doctor v. Hartman, 74 Ind. 221;Trotter v. Neal, 50 Ark. 340, 7 S. W. Rep. 384. It is not enough that the pleadings allege that the validity of a statute is challenged, for it must appear from the record that there is a solid foundation for the allegation. The appellate system of Illinois is, in some respects, similar to ours, and the subject we are here dealing with has been discussed by the supreme court of that state. In the case of Chaplin v. Commissioners, 126 Ill. 264-274, 18 N. E. Rep. 765, it was said: “We are of the opinion that the pleadings and decree present a question as to the validity of a statute. While the mere allegation in a pleading that a given statute is unconstitutional will not necessarily raise a question as to the validity of such statute, yet, where it can be seen that the constitutional question raised is one which may be fairly regarded as debatable, we think the question of the validity of a statute becomes involved in the case, within the meaning of the statute regulating appeals.” Without attempting to further definitely mark out the mode in which the question must be presented, we affirm that the outline given by the court in the opinion quoted and in what we have said is correct in its general scope and essential features.

It is at present unnecessary to do more than consider and construe section 1 of the act; and in giving it a construction we shall not attempt to go into details, but shall simply indicate the general lines which form the boundaries of the jurisdictional field of the appellate court. The section of the act referred to, in so far as it is relevant to the subject with which we are immediately concerned, reads thus: “The name of said court shall be the ‘Appellate Court.’ It shall consist of five judges, and have exclusive jurisdiction of all appeals from the circuit, superior, and criminal courts in cases of misdemeanor; cases originating before a justice of the peace, where the amount in controversy exceeds fifty dollars, exclusive of costs; all cases for the recovery of money only, where the amount in controversy does not exceed one thousand dollars; and all cases for the recovery of specific personal property; actions between landlord and tenant for the recovery of the possession of the leased premises; and in all cases of appeals from orders allowing or disallowing claims against decedents' estates. In all such cases the decision of the appellate court shall be final: provided, however, that if the validity of any statute of this state or of the United States is involved, said court shall so certify, and thereupon the transcripts, with all the papers in such cause, shall be transmitted to the supreme court with such certificate, and filed therein, and all proceedings conducted thereafter as if said cause had been originally appealed to the supreme court.”

It is simply repeating, in another form of words, the provisions of the act, to declare, as we do, that prosecutions in cases of misdemeanors are within the jurisdiction of the appellate court. Such cases form the first class. Appeals from judgments rendered in cases of prosecution for felonies fall within the jurisdiction of the supreme court, inasmuch as jurisdiction of that class of cases remains untouched.

The second class of cases over which the appellate court is given jurisdiction embraces all cases which originated before a justice of the peace, wherein the amount in controversy, exclusive of costs, exceeds $50. It may, perhaps, be said with relevancy and propriety that under the uniform decisions of this court the amount in controversy is to be determined from the record and the material parts of the pleading, and not from the formal demand for judgment. Cincinnati, etc., Ry. Co. v. McDade, 111 Ind. 23, 12 N. E. Rep. 135; Winship v. Block, 96 Ind. 446;Parsley v. Eskew, 73 Ind. 558;Wagner v. Kastner, 79 Ind....