Myers v. Newcomer

• Decision Date: 30 December 1930
• Docket Number: No. 13878.,13878.
• Citation: 174 N.E. 290,202 Ind. 335
• Parties: MYERS v. NEWCOMER et al.
• Court: Indiana Supreme Court

202 Ind. 335
174 N.E. 290

MYERS
v.
NEWCOMER et al.

No. 13878.

Supreme Court of Indiana.

Dec. 30, 1930.

Appeal from Hendricks Circuit Court; Z. E. Dougan, Judge.

Action between Geneva Bates Myers and Joseph W. Newcomer and others. Geneva Bates Myers appealed to the Appellate Court, which purported to decide the case (172 N. E. 927), and denied the petition for rehearing. On motion and petition to transfer the case to the Supreme Court.

Petition dismissed.

*290William Bosson, of Indianapolis, and Clark & Kahl, of Danville, for appellant.

Charles E. Cox, of Indianapolis, and Otis E. Gulley, of Danville, for appellee.

MARTIN, J.

The Appellate Court of Indiana on July 3, 1930, 172 N. E. 927, purported to decide this case, its decision reading as follows: “Per Curiam. Judgment affirmed.” On November 13, 1930, a petition for rehearing was denied. The appellant, on December 13, filed a motion and petition to transfer the case to this court, and briefs thereon have been filed by both parties.

The appellees in their brief (citing Craig v. Bennett (1901) 158 Ind. 9, 62 N. E. 273, and other cases) say that, where the Appellate Court affirms a judgment without a written opinion, no basis can be presented to invoke the power of the Supreme Court to transfer the case. The question thus arises here, as in Hunter et al. v. C., C., C. & St. Louis Ry. Co., 174 N. E. 287, decided concurrently herewith, as to whether a party to an appeal in the Appellate Court has a right guaranteed by the Constitution or provided by statute to have a written opinion or statement in writing of the material questions arising in the record thereof?

[1] In Hunter et al. v. C., C., C. & St. Louis Ry. Co., 174 N. E. 287, we decided that section 15, c. 247, Acts 1901, section 1351, Burns' 1926, enjoins upon the Appellate Court the same duty, with regard to giving “a statement in writing of each question arising in the record of such [every] case and the decision of the court thereon,” which is by section 5, art. 7, Const. 1851, section 172, Burns' 1926, enjoined upon the Supreme Court.

The appellant in her brief supporting the petition to transfer states that a question of rights guaranteed by the state Constitution is involved in this appeal (which question is within the jurisdiction of the Supreme Court and not within the jurisdiction of the Appellate Court section 1356, Burns' 1926), and that such fact was brought to the attention of the Appellate Court. Section 1359, Burns' 1926, provides that: “If any...