Opinion
No. 18,769.
Filed May 31, 1956.
APPEAL — Statute — Constitutional Law — Supreme Court. — Where the only argument made is that the statute involved is not constitutional under either the State or Federal Constitutions, the appeal should be taken to the Supreme Court of Indiana (Section 4-214, Burns' 1946 Replacement) and this appeal is so transferred, pursuant to Sec. 4-217, Burns' 1946 Replacement and Rule 2-41.
From the Criminal Court of Marion County, Division 1, Scott A. McDonald, Judge.
George Edward Payne, appellee, filed recognizance bonds in two criminal cases pending against him and appellant, Capitol Indemnity Insurance Company was surety on the bonds. Upon failure to appear at trial, the bonds were ordered forfeited and judgment entered in each case in the amount of the bond in favor of appellee, State of Indiana. Appellant appeals.
Appeal transferred to the Supreme Court of Indiana. By the court in banc.
Stump Emswiller, of Indianapolis, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling, and George L. Diven, Deputy Attorneys General, for appellee.
Two separate criminal cases were filed against the appellee, George Edward Payne. He filed a recognizance bond in each case with the appellant as surety thereon. When he failed to appear on the trial dates, the court, in each case, following the procedure prescribed by Burns' Indiana Stat., § 9-722, 1942 Repl., entered an order declaring the bonds forfeited and ordering the Clerk to notify appellant of the forfeitures. Following the mailing of notices and the failure of appellant to produce the defendant, the court entered judgment in each case against appellant in the amount of the bond. The appeals from each judgment were consolidated by order of the court.
The only argument made by appellant is that the statute, Burns' Indiana Stat., § 9-722, 1942 Repl. violates certain sections of Articles 1 and 3 of the Constitution of Indiana and Amendment 14 to the Constitution of the United States.
Burns' Indiana Stat., § 9-722, 1942 Repl., provides for an appeal to the "Appellate Court" as in other civil cases. However, a reference to the Acts of the General Assembly for 1927, Ch. 132, p. 411, discloses that the quoted words should not have been capitalized. They refer merely to the appropriate appellate tribunal.
All appeals should be taken directly to the Supreme Court where there is in question, and such question is duly presented, the constitutionality of a statute or the rights guaranteed by the State or Federal constitutions. Burns' Indiana Stat., § 4-214, 1946 Repl.
These appeals have been erroneously filed in the Appellate Court of Indiana. Under the authority of the Acts of the General Assembly of 1901, Ch. 247, § 13, p. 565, being Burns' Indiana Stat., § 4-217, 1946 Repl., and under Rule 2-41 of the Supreme Court, these appeals are ordered transferred to the Supreme Court of Indiana.
NOTE. — Reported in 134 N.E.2d 822.