Opinion
No. 18,316.
Filed November 20, 1953.
APPEAL — Petition to Transfer — Must be Approved by Majority of Judges Participating. — Where two of five judges of Supreme Court denied, two approved and one did not participate then there was not a majority of those judges participating approving the petition to transfer and it was denied.
From the Newton Circuit Court, Newell A. Lamb, Judge.
Action by Anna Bizik to set aside certain deeds of conveyance by her to her husband, Joseph Bizik, or to recover damages, by reason of a collusive illegal agreement between the parties in obtaining a divorce by the husband. From a judgment for the defendant, the plaintiff appealed.
Petition to transfer denied.
Ryan, Chester Clifford, of Valparaiso and Jay E. Darlington, of Hammond, for appellant.
Allen P. Twyman, of East Chicago, and Albert H. Gavit, of Gary, for appellee.
This action is before us on petition to transfer from the Appellate Court under § 4-215 Burns' 1946 Replacement, Acts of 1933, ch. 151, § 1, p. 800, and was argued before this court by counsel for both appellant and appellee.
Bizik v. Bizik (1953), 111 N.E.2d 823, 112 N.E.2d 760.
After due consideration Draper, J. and Bobbitt, C.J. reached the conclusion that the petition to transfer should be granted. Emmert and Flanagan, JJ. are of the opinion that the Appellate Court reached the right result and that the petition to transfer should be denied. Gilkison, J. did not participate.
Therefore, a majority of those judges participating not being in favor of the petition to transfer, it is denied. Gary Railways v. Chumcoff (1952), 230 Ind. 309, 103 N.E.2d 203.
Transfer denied.
Gilkison, J., not participating.
NOTE. — Reported in 115 N.E.2d 503.