Nation v. Green

• Court: Court of Appeals of Indiana
• Citation: 116 N.E. 840,65 Ind.App. 136
• Docket Number: No. 9284.,9284.
• Parties: NATION et al. v. GREEN et al.
• Decision Date: 26 June 1917

65 Ind.App. 136
116 N.E. 840

NATION et al.
v.
GREEN et al.

No. 9284.

Appellate Court of Indiana, Division No. 1.

June 26, 1917.

Appeal from Circuit Court, Howard County; Joseph Combs, Special Judge.

On petition to transfer to Supreme Court. Granted.

For former opinion, see 114 N. E. 895.

Harness & Moon, of Kokomo, for appellants. Blacklidge, Wolf & Barnes, of Kokomo, and R. L. Ewbank, of Indianapolis, for appellees.

HOTTEL, C. J.

[1][2] Since the filing of the opinion herein, dismissing the appeal, counsel for appellee have filed a petition in which they suggest that the jurisdiction of the appeal is in the Supreme Court, and ask that the case be transferred to that court, under section 1397, Burns 1914. Appellants have filed a response to said petition, in which they concede the correctness of appellee's contention, and say, in effect, that the appeal was taken by them to this court under a misapprehension of the method of transfer by which the two cases of Daniels v. Bruce, 176 Ind. 151, 701, 95 N. E. 569, 577, reached the Supreme Court, they thinking that said cases were transferred from this court under clause 2, § 1394, Burns 1914, when in fact such transfer was made under section 1397, Burns 1914. It is, in effect, conceded by both parties that if by acts and conduct jurisdiction could be conferred or waived, it has been done in this case. However, jurisdiction of the subject-matter is conferred by law only, and the parties are strictly within their rights and duties in presenting the question even at this late day.

[3] However, in view of the fact that, for reasons hereinafter indicated, there is some room for doubt as to the question of jurisdiction, and in view of the fact that clause 2, § 1394, furnishes an opportunity to either party to transfer the case to the Supreme Court for its final determination of any question, jurisdictional or otherwise, decided by this court, which contravenes a ruling precedent of the Supreme Court, we would be inclined to allow our judgment of dismissal to stand and let the parties pursue the remedy last indicated; but, for reasons which will appear later in the opinion, the judgment of dismissal must, in any event, be set aside, and the case determined on its merits.

[4] This being true, it becomes important to have the question of jurisdiction properly determined in advance, because if this court is without jurisdiction, anything it may hereafter do, as well as the things which it has

[116 N.E. 841]

already done, will be a nullity. Doctor v. Hartman, 74 Ind. 221; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Huber v. Beck, 6 Ind. App. 47, 32 N. E. 1025.

[5] Said case of Daniels v. Bruce, supra, upon which the parties base their claim that jurisdiction of this appeal is in the Supreme Court, were consolidated and decided by this court, January 26, 1911. Daniels v. Bruce, 93 N. E. 675. A petition for rehearing was overruled, after which appellees filed in the Supreme Court a petition to transfer the causes to that court under the second clause of section 1394, Burns 1914, supra. They, on the same day, filed in this court a petition, asking it to set aside all proceedings had in said consolidated causes and to transfer such...