Opinion
No. 17,256. (Appellate Court.)
Filed February 26, 1945.
COURTS — Transfer of Causes — Appellate Court to Supreme Court — Erroneous Decision of New Question of Law Alleged — Subject not Mentioned in Opinion — Effect. — Where appellee's petition to transfer, based on the ground that the opinion of the Appellate Court erroneously decided a new question of law, dealt solely with a contention that appellant was guilty of contributory negligence as a matter of law, but such subject was not mentioned in the opinion of the Appellate Court, and no other grounds for transfer were alleged, no question was presented for consideration and the petition was dismissed.
From the Pulaski Circuit Court; Robert E. Thompson, Judge.
Action by Frank Fields against Warren Hahn for damages for injuries sustained by plaintiff when he was struck by defendant's automobile, wherein judgment for defendant was reversed by the Appellate Court and defendant filed a petition to transfer to the Supreme Court.
Petition Dismissed.
[For opinion of the Appellate Court, see 115 Ind. App. 365.]
Delph L. McKesson, and Marshall F. Kizer, both of Plymouth, and Kenneth Booz, of Bourbon, for appellant.
Horner, McDowell and Gast, of Winamac, and Stevens and Stevens, of Plymouth, for appellee.
Appellee's petition to transfer purports to be grounded on clause (b) of subsection (4), Rule 2-23, 1943 Revision, "that the opinion of the Appellate Court erroneously decides a new question of law." The petition deals solely with appellee's contention that appellant was guilty of contributory negligence as a matter of law, a subject that was not mentioned in the opinion of the Appellate Court. There is no attempt to comply with either clause (a) or clause (c). No question being presented for our consideration, the petition is dismissed.
Note. — Reported in 59 N.E.2d 359.