Square D. Co. v. O'Neal

• Decision Date: 29 April 1947
• Docket Number: 28265.
• Citation: 72 N.E.2d 654,225 Ind. 49
• Parties: SQUARE D. CO. v. O'NEAL.
• Court: Indiana Supreme Court

72 N.E.2d 654

225 Ind. 49

SQUARE D. CO. v. O'NEAL.

No. 28265.

Supreme Court of Indiana

April 29, 1947

Jones Obenchain & Butler, of South Bend, for appellant.

Henry L. Humrichouser, of South Bend, for appellee.

Leon H. Wallace, of Bloomington, amicus curiae.

STARR Judge.

The Square D. Company filed its petition to transfer to this court from the Appellate Court a certain cause entitled Square D. Co. v. Roy O'Neal, Ind.App., 66 N.E.2d 898, wherein the Appellate Court, in an action to review an award of the Industrial Board, had affirmed said award and denied said company's petition for rehearing. The clerk of this court refused to file the petition to transfer until the company deposited the sum of $50, which deposit was made and is now in the hands of the clerk. The clerk's refusal was based solely upon § 4-215, Burns' 1946 Repl. Part 2 which requires a deposit of $50 as a condition precedent to the filing and consideration of a petition to transfer. At the time of the deposit and the filing of the petition to transfer the company also filed a petition in this court for a refund of this deposit on the ground that to require same is without warrant in law for the reasons set out later in this opinion. In due course the company's petition to transfer was denied and at the time of the denial, on order of this court, the petition for refund was docketed in this court as a separate action.

The first contention as set out in this petition is that the provision contained in § 4-215 which requires a deposit of $50 is inconsistent with and has been superseded by Rule 2-23, 1946 Revision, which as now written has been a rule of this court since the 1943 Revision. Said § 4-215 is the section which purports to grant to the losing party in the Appellate Court the right to a transfer to this court. The statute among other things provides: 'The party seeking to file such application (petition to transfer) shall, at the time of such filing, deposit with the clerk of the Supreme Court a cash deposit in the sum of fifty dollars ($50.00). Upon the filing of such application, and said cash deposit, the clerk shall not certify to the lower court the opinion and judgment of said division of the Appellate Court unless and until the Supreme Court denise the application. If the application be denied the said deposit of fifty dollars ($50.00) shall be paid by the clerk to the successful party or parties in the appeal for the defrayment of expenses incurred by said party or parties for briefing and other costs incidental to the appeal. If the application be granted * * * the full amount of said cash deposit shall be returned to the party or parties making such application.'

Rule 2-23 of this court provides the various grounds for which a transfer may be had. This rule is silent as to any deposit of money being required upon the filing of a petition to transfer. It is true that the rule under consideration, as to matter of practice and procedure, is all-inclusive. If, therefore, the provision of said § 4-215 which requires this deposit of money, is a matter of practice or procedure then it has been superceded by the rule in question; but the requirement of the deposit of money as provided in said § 4-215 is neither a matter of practice nor procedure but is a part of our substantive law. Latshaw v. State ex rel., 1901, 156 Ind. 194, 59 N.E. 471. No rule which we could adopt would repeal this requirement. This court cannot change a rule of substantive law nor could the General Assembly vest us with such legislative power.

Petitioner insists that even though we should determine that the portion of the statute above set out has not been superseded by Rule 2-23 it could not apply in the instant case, the contention being that the provision applies only to cases which have been appealed to the Appellate Court and that it could not apply to a review by the Appellate Court of an award of the Industrial Board. In support of this contention our attention has been called to the case of Warren v. Indiana Telephone Co. 1940, 217 Ind. 93, 26 N.E.2d 399, wherein this court says that the legislature has not provided any procedural machinery for appeal to this court of judgments of the Appellate Court in compensation matters and that in such cases we borrow the statutory machinery for transfer of appeals in ordinary cases. The court as now constituted does not agree with the above statement in the case last cited.

At a time when it was thought that the legislature had exclusive authority to provide rules as to a transfer of cases this court in the case of Curless v. Watson, 1913, 180 Ind. 86, 91, 102 N.E. 497, 499, said: 'In section 4, art. 7, of our Constitution the Supreme Court was given jurisdiction over appeals and writs of error (our italics). Writs of error had a definite meaning then, and have yet, viz.: 'A writ authorizing an appeal from an inferior court, assigning error in the proceedings as relating only to matters of law, arising upon the face of the proceedings so that no evidence is required to substantiate or support it.' The Constitution authorizes the Legislature to make such regulation and restrictions as it might see fit. Section 4, art. 7, Const.Ind. [supra]. This the Legislature has done from time to time by providing rules as to the transfer of cases from other courts to the Supreme Court, and this takes the place of the constitutional 'appeals' and 'writs of error.' The question had been presented to the court in this case, 'Has the writ of error been abolished in this state?' This question cannot be important, for the reason that our statutory appeal takes its place, and makes full provision for the transfer of cases to this court, in every case which the Legislature has thought proper to be reviewed on appeal. It makes no difference in what manner a case may be transferred for review so long as the Legislature under its power to regulate and restrict 'appeals' and 'writs of error' has made some provision. * * * The Legislature has the right to call the writ of error 'an appeal,' or 'certiorari,' and provides the manner and condition for taking the appeal to the Supreme Court, but when that is done their powers and duties are at an end.'

Other than the inference that the legislature can limit appeals to those it thinks proper and that the ultimate right to make rules of procedure rests in the legislature, we fully approve of the foregoing quotation.

The first statutory provision for a transfer of cases from the Appellate Court to this court was made by § 10, Ch. 247, of the Acts of 1901. The title of this act was '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.' As...