Opinion
No. 27,658.
Filed March 10, 1942.
1. COURTS — Transfer of Causes — Supreme Court to Appellate Court — Declaration of Rights Sought Merely Incidental to Injunction Decree — Jurisdiction. — Where, on appeal from a judgment designated by the parties as a declaratory judgment, the declaration of rights was merely incidental to a decree granting a permanent injunction, the Supreme Court was without jurisdiction and the cause was transferred to the Appellate Court. p. 2.
2. COURTS — Transfer of Causes — Supreme Court to Appellate Court — Constitutional Question Not Presented. — Where the briefs filed in an appeal did not present a constitutional question, the Supreme Court was without jurisdiction of the appeal, even though the complaint in the action had asserted that such a question was involved if a statute mentioned therein was given a certain construction, and the cause was transferred to the Appellate Court. p. 2.
From the Marshall Circuit Court; John W. Kitch, Judge.
Action by Russell L. Travis and Hubert Tanner, acting for themselves and for all other members of the copartnership of the Plymouth Manufacturing Company, against Chester H. Thompson and others, acting as members of the board of control of Plymouth Manufacturing Company, for a declaration of rights and an injunction to prevent payment of taxes under the Unemployment Compensation Law, wherein Sam Tomlinson intervened. From a decree in favor of plaintiffs and the intervenor, defendants appealed to the Supreme Court.
Cause transferred to Appellate Court.
Isadore D. Rosenfeld, of South Bend, for appellants.
Walter R. Arnold, of South Bend, and Albert B. Chipman, of Plymouth, for appellees.
George N. Beamer, Attorney General, Joseph P. McNamara, Deputy Attorney General, Fred Bechdolt and Charles W. Grubb, both of Indianapolis, and Oliver A. Switzer, of South Bend, amici curiae.
The judgment from which this appeal is attempted to be taken is designated by the parties as a declaratory judgment. The declaration of rights, however, seems to be merely 1, 2. incidental to a decree which grants a permanent injunction to the appellees Travis and Tanner on their complaint and to an intervenor, appellee Tomlinson, upon his cross-complaint. It is asserted in the complaint that a constitutional question is involved if a statute mentioned therein is given a certain construction. But the briefs do not present any such question. This court is without jurisdiction of the appeal, § 4-214, Burns' 1933, § 1356, Baldwin's 1934. Ross, Rec. v. Terre Haute, etc., Traction Co. (1930), 202 Ind. 698, 171 N.E. 665. Accordingly the cause is hereby ordered to be transferred to the Appellate Court of Indiana pursuant to § 4-217, Burns' 1933, § 1362, Baldwin's 1934.
NOTE. — Reported in 39 N.E.2d 944.