Summary
In Dover v Reynolds, 245 Ind. 33, 34; 196 N.E.2d 76 (1964) (incorrectly cited in plaintiff's brief as being State v Boone Circuit), the court held that because the Supreme Court "granted a petition for rehearing generally, and the case is before the court as if it had never been decided" it thus cannot be cited as authority. The Dover case, however, appears to be an appeal from an intermediate appellate court.
Summary of this case from Riley v. Geriatric CenterOpinion
No. 19,583.
Filed February 12, 1963. Rehearing denied March 18, 1963. Transfer denied February 10, 1964.
APPEAL — Rehearing Granted — Citation as Authority. — A case cannot be cited as authority where the Supreme Court has granted a petition for rehearing generally, and the case is before the court as if it had never been decided.
From the St. Joseph Superior Court No. 2, F. Kenneth Dempsey, Judge.
Erma Dover, appellant, brought action for damages for personal injuries sustained in an automobile collision. The judgment of the trial court favorable to appellee, James D. Reynolds, was affirmed in an opinion by the Appellate Court. Appellant petitions to transfer to the Supreme Court.
Reporter's Note: See Appellate Court opinion reported in 187 N.E.2d 582.
Petition to transfer denied.
David L. Matthews and George T. Patton, both of South Bend, for appellant.
William E. Mills, of South Bend, for appellee.
ON PETITION TO TRANSFER
This case comes to us on petition to transfer. We concur in the opinion of the Appellate Court with the exception that it uses the case of State ex rel. Brosman v. Whitley Circuit Court et al. (1963), 186 N.E.2d 881, as authority to support the proposition that when an answer is filed to a complaint the issues are closed. While the general proposition of law expressed in the Appellate Court's opinion is correct (see Black's Law Dictionary, Fourth Edition, page 964 et seq., "issue"), the foregoing case cannot be cited as authority because this court has granted a petition for rehearing generally, and the case is before the court as if it had never been decided. Booher et al. v. Goldsborough et al. (1873), 44 Ind. 490; Bally et al. v. Guilford Twp. School Corp., etc. (1955), 234 Ind. 273, 126 N.E.2d 13.
Petition to transfer denied.
Landis, C.J., and Achor and Arterburn, JJ., concur. Jackson, J., concurs in result.
NOTE. — Reported in 196 N.E.2d 76.