Pittsburgh, C., C. & St. L.R. Co. v. Hoffman

• Decision Date: 12 July 1928
• Docket Number: No. 12633.,12633.
• Citation: 162 N.E. 403,200 Ind. 178
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. R. CO. v. HOFFMAN.

200 Ind. 178

162 N.E. 403

PITTSBURGH, C., C. & ST. L. R. CO.

v.HOFFMAN.

No. 12633.

Supreme Court of Indiana.

July 12, 1928.

Appeal from Superior Court, Delaware County; Robert F. Murray, Judge.

Action by Lizzie Hoffman against the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company. Judgment for plaintiff was affirmed by the Appellate Court (155 N. E. 622), and defendant applies for transfer and writ of error. Petition denied.

G. E. Ross, of Logansport, and Silverburg, Brakan & Gray, of Muncie, for appellant.

Oren W. Dickey, of Marion, for appellee.

WILLOUGHBY, J.

The appellee recovered a judgment against the appellant in an action for personal injuries. The complaint was in two paragraphs, each charging the appellant with actionable negligence. These paragraphs of complaint were answered by a verified general denial to each of said paragraphs. The issue thus formed was tried by a jury, resulting in a verdict against the appellant and in favor of appellee, and assessing her damages at the sum of $4,500, upon which verdict the court rendered judgment in favor of appellee and against the appellant for said amount. From such judgment this appeal is being prosecuted. On appeal the Appellate Court affirmed the judgment of the court below (155 N. E. 622).

[1] The appellant has filed what it styles an application for a writ of error, transfer, and assignment of errors. This petition, if considered a petition to transfer to the Supreme Court under section 1357, Burns' 1926, is not sufficient. A petition to transfer a cause from the Appellate Court to the SupremeCourt must allege facts necessary to bring it within the statutory provisions without the necessity of the Supreme Court examining the record to determine such facts, in view of this section and section 1356, Burns' 1926. In re Aurora Gaslight, etc., Co., 186 Ind. 690, 115 N. E. 673.

The petition does not allege such necessary facts, and therefore presents no question for the determination of this court under the statute. The petition presented is simply a petition for a writ of error. The appellant has ignored the Appellate Court and the act requiring the transfer of causes from said Appellate Court to this court in certain cases provided for in the statute. Section 1357, Burns' 1926. An act to create an Appellate Court and defining its jurisdiction and procedure and declaring an emergency, approved February 28, 1891 (Acts 1891, p. 39, c. 37), was passed by the Legislature of 1891. Section 26 of that act provided that:

“The period of existence of said Appellate Court shall be six years from the first day of March, 1891, and no longer, at the end of which time the Supreme Court shall assume jurisdiction of all causes pending in *** said Appellate Court as if this act had never been passed.”

This act was amended by an act approved January 28, 1897 (Acts 1897, p. 10, c. 9). The amendment is as follows:

“Section 1. That section 26 of an act entitled, ‘An act to create an Appellate Court and define its jurisdiction and procedure and declaring an emergency,’ approved February 28, 1891, be, and the same is hereby repealed. Section 2. That the term of office of each of the judges of said Appellate Court shall be four years from the first day of January next after his election; and that all of the present judges of said court shall continue to hold their offices as such, respectively, for the districts for which they have been elected, for and during the term of four years from the first day of January, 1897. Section 3. The period of the existence of said Appellate Court shall be four years from the first day of January, 1897, and no longer, at the end of which time the Supreme Court shall assume jurisdiction of all causes pending in and other business of said Appellate Court as if this act had never been passed.”

Section 4 is an emergency clause.

This act of 1897 was amended by an act approved February 7, 1899 (see Acts 1899, p. 24, c. 22). The amendment of 1899 is as follows:

“Section 1. *** That section 3 of an act entitled ‘An act to repeal section 26 of an act entitled “An act to create an appellate court and define its jurisdiction and procedure, and declaring an emergency,” approved February 28, 1891; and to prescribe the terms of office of the judges of said court, and declaring an emergency, and providing that at the expiration of the time for which the court is extended the business then undisposed of by the court shall be transferred to the Supreme Court,’ approved January 28, 1897, be and the same is hereby amended to read as follows: ‘Section 3. The period of the existence of said Appellate Court shall be six years from the first day of March, 1897, and no longer, at the end of which time the Supreme Court shall assume jurisdiction of all causes pending in and other business of said Appellate Court as if this act had never been passed. Section 2. The first election of the five judges of said court after that in November, 1898, shall be at the general election on the first Tuesday after the first Monday in November, 1902, and the succeeding elections of said five judges shall be every four years thereafter, and the judges elected at such elections shall qualify as now provided by law and shall enter upon their terms of office on the first day of January next after their election. Section 3. All laws and parts of laws in conflict with the provisions of this act are hereby repealed.”’

Section 4 is an emergency clause.

An act approved March 12, 1901, and entitled an act concerning appeals, increasing the number of judges of the Appellate Court, providing that the same shall sit in two divisions, defining their jurisdiction and the jurisdiction of the Supreme Court, repealing former laws, and declaring an emergency, does not purport to amend any other act, and provides that except as otherwise declared the jurisdiction of the Supreme Court and the procedure therein shall be as is now provided by law. Acts 1901, p. 565, c. 247. In section 2 of said act it provides that the Appellate Court shall be composed of six instead of five judges as now provided by law. Said court, for the hearing and decision of causes, shall sit in two divisions, which shall be designated as the Appellate Court of Indiana, Division Nos. 1 and 2, respectively. Section 3 enumerates the counties composing each division. Section 4 provides that the judges resident in the first district shall constitute Appellate Court Division No. 1, and the judges resident in the second district shall constitute Appellate Court Division No. 2. The judges shall be and remain residents of the districts from which they are elected or appointed. Section 9 of said act provides that no appealable case shall hereafter be taken directly to the Supreme Court unless it be within one of the following classes. The classes are then enumerated in such section. Section 10 provides for the transfer of cases to the Supreme Court. Section 13 provides that if any case is erroneously appealed to the wrong court, that court shall make an order for its transfer to the proper court and the appeal shall stand as if originally filed in the right court. Section 14 provides for the election of Appellate Court judges. Section 15 provides for the manner in which appeals shall be taken to the Appellate Court Section 19 is as follows:

“Section one of an act entitled ‘An act to amend section 3 of an act entitled “An act to repeal section twenty-six of an act entitled an act to create an Appellate Court and define its jurisdiction and procedure, and declaring an emergency,” approved February 28, 1891; and to prescribe the terms of office of the judges of said court, and declaring an emergency, and providing that at the expiration of the time for which the court is extended, the business then undisposed of by the Court shall be transferred to the Supreme Court,’ approved January 28, 1897; and fixing the time of electing the judges of said Appellate Court, and repealing all laws in conflict therewith, and declaring an emergency, approved February 7, 1899, is hereby repealed.”

Section 20 of this act is as follows:

“Nothing in this act shall be construed to repeal that part of the act approved February 28, 1891, and amendments thereto, which created the Appellate Court of Indiana; but this act shall be held and construed to be supplemental to the parts of said act and the amendments thereto which are not by this act repealed. And the judges of the Appellate Court now elected shall be judges of said court from the districts in which they reside and shall hold their office for the term for which they were elected the same as if this act were not passed.”

Section 21 is as follows:

“All laws and parts of laws inconsistent with this act are hereby repealed.”

Section 22 is an emergency clause.

The appellant claims that all acts attempting to change or supplement or to amend said act of February 28, 1891, are null and void, because they are in violation of the Constitution of the state of Indiana. The appellant in this case contends that the act of February 28, 1891, and each and every act since that time attempting to change, amend, add to, or take from, or to enact the same, are each and all null and void for the reason that they are each and all enacted to create a court and give it a power to do the things which under the Constitution are vested exclusively and irrevocably in this, the Supreme Court, namely, the duty, right, and power to finally consider, determine, and adjudge the law as to be applied and administered within the limits of this state.

The appellant in this case has applied for a writ of error and asked that the record be certified and docketed in this, the Supreme Court of Indiana, and that the judgment appealed from be in all things reversed.

The appellee contends that the Appellate Court is still in existence and was created for six years and by an act becoming effective January 28, 1897,...