Opinion
No. 18,979.
Filed June 26, 1958.
APPEAL — Transfer to Supreme Court — Conflict of Decisions — Erroneous Ruling Precedent — Appellate Court Sitting in Divisions. — Where the Appellate Court transferred this cause to the Supreme Court for the reason that there is an apparent conflict in two decisions of the Supreme Court and for the further reason that three members of the Appellate Court are of the opinion that the ruling precedent of the Supreme Court in one of said cases is erroneous, this cause is ordered transferred back to the Appellate Court since it does not appear that the Appellate Court sat in divisions as provided by § 4-202, Burns' 1946 Replacement.
From the Marion Superior Court Room Two, Hezzie B. Pike, Judge.
This appeal was filed with the Appellate Court, which court in an opinion transferred it to the Supreme Court pursuant to § 4-215, Burns' 1946 Replacement.
Cause transferred back to Appellate Court.
Albert Stump and Stump Emswiller, of Indianapolis, for appellant.
Smith Jones, James A. Colvin, Richard Smith, Leo L. Kriner and Kriner Harman, all of Indianapolis, for appellees.
This cause has been transferred to this court pursuant to Burns' § 4-215 (Acts of 1933, ch. 151, § 1) for the cited reason that there is apparent conflict in two decisions of this court, and for the further reason that three members of the Appellate Court are of the opinion that the ruling precedent of the Supreme Court in one of said cases is erroneous.
The statute under which this cause was transferred to us provides so far as applicable, that: "If in any case, two [2] of the judges of either division are of the opinion that a ruling precedent of the Supreme Court is erroneous, the case, with a written statement of the reasons for such opinion, shall be transferred to the Supreme Court."
As it does not appear that the Appellate Court sat in divisions in this cause as provided by Burns' § 4-202 (Acts 1925, ch. 85, § 1, p. 247), this cause is now ordered transferred back to the Appellate Court. See: Biel, Inc. v. Kirsch (1958), 238 Ind. 372, 150 N.E.2d 896.
NOTE. — Reported in 151 N.E.2d 299.