Ross v. Terre Haute, Indianapolis & Eastern Traction Co.

• Decision Date: 12 June 1930
• Docket Number: No. 25425.,25425.
• Citation: 202 Ind. 698,171 N.E. 665
• Parties: ROSS v. TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.
• Court: Indiana Supreme Court

202 Ind. 698

171 N.E. 665

ROSS

v.TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.

No. 25425.

Supreme Court of Indiana.

June 12, 1930.

Appeal from Clinton Circuit Court; E. B. Stroup, Judge.

Action by Walter L. Ross, Receiver of Toledo, St. Louis & Western Railroad Company, against the Terre Haute, Indianapolis & Eastern Traction Company. From the judgment, plaintiff appeals.

Cause transferred to Appellate Court.

Harker & Irwin, of Frankfort, for appellant.

E. F. Gruber, of Frankfort, for appellee.

PER CURIAM.

This is an action on contract to recover the expense incurred by appellant in repairing the crossing of the tracks of appellant and appellee. It is assigned as error that the court erred in sustaining appellee's demurrer to appellant's amended complaint. One of appellant's propositions is that if section 13277, Burns' 1926, is construed to prohibit the right of contract with regard to the means and method of maintenance and repair of crossings, then the statute is unconstitutional and void.

[1][2][3] All appeals in appealable cases shall be taken directly to the Supreme Court in which there is in question, and such question is duly presented, the constitutionality of a statute, state or federal, or the rights guaranteed by the state or federal Constitution. Section 1356, Burns' 1926.

In Ewbank, Manual of Practice (2d Ed.) § 62a, the following is stated: “The Appellate Court is not deprived of jurisdiction to construe and apply the constitution when the validity of a statute is not involved, and a mere suggestion in the briefs of counsel that if one construction were given to a statute it would be made to conflict with a certain provision of the state constitution does not raise a constitutional question.” Pittsburgh, etc., R. Co., v. Hays (1896) 17 Ind. App. 261, 44 N. E. 375, 45 N. E. 675, 46 N. E. 597;In re Pittsburgh, etc., R. Co. (1897) 147 Ind. 697, 47 N. E. 151.

It is a general rule that objections not presented to the trial court will not be available to reverse its judgment on appeal. It does not appear that the constitutionality of said act was presented to the circuit court. The jurisdiction of this cause is in the Appellate Court.

It is therefore ordered that this cause be transferred from the Supreme Court to the Appellate Court.