Opinion
No. 25,425.
Filed June 12, 1930.
1. APPEALS — To Supreme Court — When Constitutional Question Presented — Or Constitutional Rights Involved. — Under the provisions of § 1356 Burns 1926, all appeals in appealable cases in which the constitutionality of a statute, state or federal, is duly presented, or, in which the rights guaranteed by the state or federal constitution are involved, must be taken directly to the Supreme Court. p. 699.
2. APPEALS — Jurisdiction — Constitutional Question Involved — How Question Raised. — The mere suggestion in appellant's brief that if a certain construction were given to a statute involved in the litigation it would conflict with the Constitution does not raise a constitutional question so as to give the Supreme Court jurisdiction. p. 699.
3. APPEALS — Objections Must be Presented to Trial Court. — Objections not presented to the trial court are not available to reverse a judgment on appeal. p. 700.
4. APPEALS — Constitutional Question Not Presented to Trial Court — Jurisdiction in Appellate Court. — Where the constitutionality of a statute was not presented to the trial court, that question is not presented so as to give the Supreme Court jurisdiction on appeal, but the jurisdiction is in the Appellate Court. p. 700.
From Clinton Circuit Court; Earl B. Stroup, Judge.
Action by Walter L. Ross as receiver of the Toledo, St. Louis and Western Railroad Company against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for defendant, the plaintiff appealed to the Supreme Court. (Transferred to Appellate Court for want of jurisdiction.)
Harker Irwin, for appellant.
Earl F. Gruber and D.E. Watson, for appellee.
This is an action on contract to recover the expense incurred by appellant in repairing the crossing of the tracks of appellant and appellee. It is assigned as error that the court erred in sustaining appellee's demurrer to appellant's amended complaint. One of appellant's propositions is that if § 13277 Burns 1926 is construed to prohibit the right of contract with regard to the means and method of maintenance and repair of crossings, then the statute is unconstitutional and void.
All appeals in appealable cases shall be taken directly to the Supreme Court in which there is in question, and such question is duly presented, the constitutionality of a statute, 1, 2. state or federal, or the rights guaranteed by the state or federal Constitution. § 1356 Burns 1926. In Ewbank, Manual of Practice (2d ed.) § 62a, the following is stated: "The Appellate Court is not deprived of jurisdiction to construe and apply the constitution when the validity of a statute is not involved, and a mere suggestion in the briefs of counsel that if one construction were given to a statute it would be made to conflict with a certain provision of the state constitution does not raise a constitutional question." Pittsburgh, etc., R. Co. v. Hayes (1896), 17 Ind. App. 261, 44 N.E. 375, 45 N.E. 675, 46 N.E. 597; In re Petition Pittsburgh, etc., R. Co. (1897), 147 Ind. 697, 47 N.E. 151.
It is a general rule that objections not presented to the trial court will not be available to reverse its judgment on appeal. It does not appear that the constitutionality of said act 3, 4. was presented to the circuit court. The jurisdiction of this cause is in the Appellate Court.
It is, therefore, ordered that this cause be transferred from the Supreme Court to the Appellate Court.