In re Gaslight, Coal & Coke Co.

• Decision Date: 01 November 1917
• Docket Number: Appellate Court 9,124
• Parties: In re Aurora Gaslight, Coal and Coke Company
• Court: Indiana Supreme Court

115 N.E. 673

186 Ind. 690

In re Aurora Gaslight, Coal and Coke Company

Appellate Court No. 9,124

Supreme Court of Indiana

November 1, 1917

Petition to Transfer Cause to Supreme Court Denied April 6 1917.

From Dearborn Circuit Court; Warren N. Hauck, Judge.

In the matter of the assessment of the Aurora Gaslight, Coal and Coke Company. Petition to transfer cause from the Appellate Court under § 1394, cl. 2, Burns 1914.

Petition denied.

McMullen & McMullens and A. C. Harris, for appellant.

Givan & Givan, for appellee.

OPINION

Spencer, J.

It is provided in § 1392 Burns 1914, Acts 1907 p. 237, that all appealable cases, except those expressly mentioned therein, shall be taken to the Appellate Court, and in § 1394 Burns 1914, Acts 1901 p. 565, it is further provided that "the jurisdiction of the appellate court shall be final, except under the following conditions * * * Second. 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", etc. In view of the latter statute, this court, under proper circumstances, is authorized to review the decision of the Appellate Court in a cause which, in the first instance, is appealable only to the Appellate Court, but before the losing party may invoke such jurisdiction it is incumbent on him, within thirty days after his petition for a rehearing has been overruled by the Appellate Court, to file in this court a proper application for the transfer of such cause. This application is jurisdictional and must, therefore, set forth such facts as are necessary to show that the petitioner has brought himself within the statute. These facts are: (1) That the Appellate Court has decided the case, or some material part thereof, against the party who asks that the case be transferred, and has overruled a petition for a rehearing duly presented by such party; (2) that a written opinion was filed by the Appellate Court setting forth the reasons on which its judgment is based; (3) that such opinion contravenes a ruling precedent of this court, or erroneously decides a new question of law, either or both of which objections if desired to be presented must be particularly pointed out; and (4) that the petition for a rehearing and the application to transfer were each...