Opinion
No. 28,066.
Filed March 14, 1945.
1. NEW TRIAL — Grounds — Decision Contrary to Law — Plaintiff Deceased at Time Judgment Taken — Proper Assignment. — The question of invalidity of a judgment sued on by an assignee because the original plaintiff was dead at the time the judgment was taken can be raised by an assignment in the motion for new trial that the decision was contrary to law. p. 241.
2. NEW TRIAL — Grounds — Decision Contrary to Law — Exclusion of Evidence as to Death of Plaintiff at Time Judgment Taken — Error Assignable. — Error of the court in refusing to admit evidence that a judgment sued on by an assignee was invalid because of the original plaintiff's death before the date of its entry is assignable in the motion for new trial. p. 241.
3. COURTS — Courts of Appellate Jurisdiction — Constitutional Question — Plaintiff Deceased at Time Judgment Taken — Question of Due Process of Law not Raised. — An assignment of error that the court erred in holding that the alleged judgment sued on by appellee as an assignee was a valid judgment because such judgment purported to be one entered in a suit where the plaintiff died before the summons was served upon appellant, did not raise the constitutional question of due process of law so as to give the Supreme Court jurisdiction of the proposed appeal. p. 241.
4. COURTS — Appellate Court — Jurisdiction — Mandate Requiring Special Judge to Sign Bills of Exception. — Since a writ of mandate to require a special judge to sign bills of exception for use on appeal is in aid of the appellate powers and functions of a court, such writ should be sought in the Appellate Court, when jurisdiction of the proposed appeal is in that court. p. 242.
5. COURTS — Transfer of Causes — Supreme Court to Appellate Court — Original Action Erroneously Filed in Supreme Court not Transferrable. — There is no statutory provision authorizing transfer from the Supreme Court to the Appellate Court of an original action erroneously filed in the Supreme Court. p. 242.
6. COURTS — Transfer of Causes — Supreme Court to Appellate Court — Statute Applicable to Appeals Only. — An original action erroneously filed in the Supreme Court for a writ of mandate to compel a special judge to sign bills of exception for use on appeal, jurisdiction of which was in the Appellate Court, could not be transferred to that court but was dismissed, since the statute providing that appeals erroneously filed in one court may be transferred to the other applies only to appeals. p. 242.
7. APPEAL — Time for Perfecting — Extension of Time for Filing Record — Petition Filed in Wrong Court — Dismissal. — Where a petition for extension of time within which to file a transcript on appeal was erroneously filed in the Supreme Court because jurisdiction of the appeal was in the Appellate Court, the petition was dismissed. p. 242.
Original action by Morton S. Hawkins against Roscoe D. Wheat and others for a writ of mandate to compel a special judge to sign bills of exception for use in an appeal from a judgment entered by the special judge in favor of respondent Roscoe D. Wheat against petitioner, and petition for an extension of time in which to file a transcript on appeal.
Petitions Dismissed.
Morton S. Hawkins, of Portland, for petitioner.
Fenton, Steers, Beasley Klee, of Indianapolis, for respondents.
This is an original action in which the petitioner seeks to mandate a special judge to sign two bills of exceptions. Pending this petition one has been signed but the other still lacks his signature. This bill of exceptions purports to contain the evidence in a cause tried by the special judge in Jay Circuit Court in which a judgment was rendered for respondent Wheat against petitioner. The bill of exceptions is for use in an appeal from said judgment. The transcript on appeal has been tendered as an exhibit in aid of the petition for writ of mandate and except for the aforesaid lacking signature is complete, including a certificate of the Clerk and assignment of errors.
Petitioner says that a constitutional question is involved giving this court jurisdiction of the attempted appeal. We have examined the transcript carefully and 1-3. find no such question presented. The second assignment of errors which purports to raise such question reads as follows:
"The court erred in holding that the alleged judgment claimed by the appellee, Roscoe D. Wheat, which purports to be a judgment in a suit where the plaintiff died before the summons was served upon the appellant, is a valid judgment, and said holding of the court below denies to the appellant due process of law in contravention of the 14th amendment to the United States Constitution, and denied to the appellant an orderly proceeding in the alleged suit wherein there was no plaintiff and denied appellant the right of appeal therein, there being no plaintiff in said suit."
This is not a sufficient assignment of any error below. The case was a suit on a judgment against petitioner, the judgment-debtor. It had been entered in favor of one James J. Adams and the complaint alleged that it had been acquired by respondent Wheat by assignment from Adams to a receiver and from him to a second receiver who assigned it to respondent Wheat. If the original judgment was invalid because, as petitioner asserts, the original plaintiff was dead at the time that the judgment was taken and the evidence showed such invalidity the question could have been raised by an assignment in the motion for new trial that the decision was contrary to law. If the court erroneously refused to admit evidence on the subject, such alleged error was assignable in the motion for a new trial. We fail to see how any question of due process is involved in either inquiry, and since the only constitutional question alleged, either in the petition or in the assignment of errors, is one of due process, we do not have jurisdiction of the proposed appeal.
It is apparent that the writ of mandate sought herein is "in aid of the appellate powers and functions" of a court. § 3-2201, Burns' 1933. The court having jurisdiction of the appeal is 4. the Appellate Court. The writ should have been sought in that court.
There is no provision by statute for transfer from this court to the Appellate Court of an original action erroneously filed herein. Section 4-217, Burns' 1933 applies only to 5, 6. appeals which when erroneously filed in one court may be transferred to the other. This action must therefore be dismissed.
What we have said disposes also of petitioner's request for an extension of time in which to file a transcript on appeal. It should have been addressed to the Appellate Court. Both 7. petitions are accordingly dismissed.
NOTE. — Reported in 59 N.E.2d 728.