Opinion
Appellate Court No. 18,000.
Transfer dismissed February 17, 1950.
1. COURTS — Courts of Appellate Jurisdiction — Writs of Prohibition or Mandate in Aid of Appellate Jurisdiction — Interlocutory Order. — Writs of prohibition or mandate in original actions in aid of appellate jurisdiction are vested in the Appellate Court, and such a writ, when so granted is, in substance, an interlocutory order and not a final determination of the case. Burns' 1946 Replacement, § 4-209. p. 144.
2. COURTS — Courts of Appellate Jurisdiction — Writs of Prohibition or Mandate in Aid of Appellate Jurisdiction — Interlocutory Order — Transfer to Supreme Court — Supreme Court Has No Jurisdiction To Transfer. — In an original action in the Appellate Court where a writ of mandate was issued by the court in aid of its appellate jurisdiction, the Supreme Court had no jurisdiction to transfer the cause from the Appellate Court because the mandate was an interlocutory order and not a final determination of the case. Burns' 1946 Replacement, § 4-209. p. 144.
Original action in the Appellate Court of Indiana by the State of Indiana on the relation of Alva O. Gilkison and others against Leo Clifford, as judge of the Porter Circuit Court, and the Porter Circuit Court for a writ of mandate commanding respondents to sign, approve and file a general bill of exceptions. The Appellate Court issued the writ on January 20, 1950, and a petition for rehearing was denied on January 24, 1950. (Reported in 120 Ind. App. 84, 89 N.E.2d 630.)
On Petition for Transfer to Supreme Court, Petition dismissed with opinion.
Young and Gilkison, J.J., not participating.
Albert H. Gavit, of Gary, for relators.
Edward J. Ryan, of Valparaiso, and Owen W. Crumpacker, of Hammond for respondents.
Ben Schwartz, Prosecuting Attorney, of Lake County, Amicus Curiae.
The relators began this action in the Appellate Court for the purpose of procuring an order mandating the respondents to sign, approve, and file a general bill of exceptions.
It is further shown that the relators desired to appeal from the judgment in the court below to the Appellate Court, and that the appeal could not be properly perfected without the general bill of exceptions.
An alternative writ issued, and the respondents filed a return, after which the petition for mandate was granted. See State v. Clifford (1950), 120 Ind. App. 84, 89 N.E.2d 630.
The respondents have filed a petition to transfer the cause to this court, and the relators have moved to dismiss the petition to transfer for want of jurisdiction.
Writs of prohibition or mandate in original actions in aid of appellate jurisdiction are vested in the Appellate Court. § 4-209, Burns' 1946 Replacement. The petition and brief 1, 2. show that this mandate was granted by the Appellate Court in aid of its appellate jurisdiction. This is, in substance, an interlocutory order, and is not a final determination of the principal case. The cases of State ex rel. M. T. Ins. Co. v. Buente, Judge (1936), 210 Ind. 432, 3 N.E.2d 977, and State ex rel. v. Deupree (1907), 169 Ind. 279, 82 N.E. 452, are controlling. This court has no jurisdiction to transfer the cause from the Appellate Court. See also Montgomery Ward Co. v. Thalman (1949), 228 Ind. 486, 89 N.E.2d 220, 221.
Petition to transfer dismissed.
Young, Gilkison, J.J., not participating.
NOTE. — Reported in 90 N.E.2d 350.