CHAPTER 3.

COURTS.

Section numbers to notes refer to Revised Statutes of 1914 and sections herein.

The power of the supreme court to frame rules is derivative of the constitution and not of a legislative act. Epstein v. State, Ind.

128 N. E. 353.

The act creating the appellate court conferred on it appellate jurisdiction only, but the legislature may confer original jurisdiction on such court, and in such cases the court may determine the constitutionality of a statute. In re Talbot, 58 App. 426, 108 N. E. 240.

1389. Appeals in civil cases.

When the amount in controversy is less than fifty dollars, and the validity of a franchise or ordinance, or the constitutionality of a statute, is not involved, an appeal can not be taken to the supreme or appellate court. Pittsburgh etc. R. Co. v. Sneath Glass Co., 183 Ind. 138, 107 N. E. 72; Washington Tp. v. Ratts, 54 App. 229, 101 N. E. 842; Schultz v. Alter, 60 App. 245, 110 N. E. 230; Mantle Lamp Co. v. Bonich, 60 App. 275, 110 N. E. 558.

See note to section 671.

Under this section and section 1391, the judgment, or the amount by the payment of which defendant may be discharged, determines the jurisdiction on appeal. Schultz v. Alter, 60 App. 245, 110 N. E. 230.

Under this section and sections 1391, 1392 subd. 14, the appellate court is without jurisdiction of an appeal in case where the amount in controversy is less than $50, such case being appealable only where the construction of a statute is involved. Greer v. Lake, 63 App. 470, 114 N. E. 699.

See note to section 1391.

Under this section and section 1391, section 61 of the Workmen's Compensation Act (80201-8020n3), and Acts 1917, ch. 63 (8020g2, 8020s2), no appeal may be taken from an award of the Industrial Board of $40. Essington v. Bowman, App. 121 N. E. 548.

1391. Supreme court, appeals to.

When the constitutionality of a statute is involved the appeal must be taken to the supreme court. Chicago etc. R. Co. v. Anderson, 182 Ind. 140, 105 N. E. 49.

In cases where original jurisdiction is conferred on the appellate court, such court may pass upon the constitutionality of a statute. In re Talbot, 58 App. 426, 108 N. E. 240.

See note to section 1389.

An appeal by the defendant in an action for negligence in selling an unauthorized interstate railroad ticket, the judgment in which action for less than $50, will, in view of section 1389, be dismissed when the appellant who claims that the appeal involves the "construction" of the Interstate Commerce act has not attempted to point out wherein the meaning of such act or any section thereof is at all doubtful, uncertain, or ambiguous, or the intent of congress not perfectly plain from the language used. Ross v. Gallogly, 187 Ind. 579, 120 N. E. 599. [Acts 1915, p. 149. In force April 26, 1915.]

1392. (13371.) Supreme court, appeals to.-9. Thereafter [Hereafter] all appeals in appealable cases in the following classes shall be taken directly to the supreme court, viz.:

First. All cases in which there is in question, and such question is duly presented, either the validity of a franchise or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the rights guaranteed by the state or federal constitution.

Jurisdiction of appeals in which constitutional questions are involved is in the supreme court. Town of Sheridan v. Rothschild, 181 Ind. 405, 104 N. E. 66; Pittsburgh etc. R. Co. v. Childs, 183 Ind. 464, 108 N. E. 583; Shaughnessey v. Jordan, 184 Ind. 499, 111 N. E. 622; Indiana Board etc. v. Haag, 60 App. 218, 110 N. E. 248.

If the validity of a municipal ordinance or resolution is involved the appeal lies to the supreme court. City of East Chicago v. Interstate Iron etc. Co., 183 Ind. 33, 107 N. E. 274.

When the constitutionality of an act of congress is involved, the supreme court has jurisdiction of the appeal. Pittsburgh etc. R. Co. v. Farmers' Trust etc. Co., 183 Ind. 287, 108 N. E. 108.

In cases where original jurisdiction is conferred upon the appellate court, such court may pass upon the constitutional questions. In re Talbot, 58 App. 426, 108 N. E. 240.

If the merits of a case can be passed upon without deciding a constitutional

question, the courts will do so. Cole Motor Car Co. v. Ludorf, 61 App. 119,

111 N. E. 447.

See note to section 1394.

Where a constitutional question is involved in an appeal to the appellate court, and is duly presented by the briefs, the case will be transferred to the Supreme Court. American Maize Products Co. v. Widiger, 60 App. 709, 110 N. E. 247. Under this section and section 1397 the appellate court will transfer a case to the supreme court where the record and briefs disclose a constitutional question. Cleveland, C., C. & St. L. R. Co. v. Blind, 64 App. 704, 116 N. E. 590.

In view of this section, where a complaint for injunction to restrain a drainage commissioner, filed under a caption which includes the title and number of the original action which the record shows was treated in the trial court as a step in the original proceedings, the supreme court will so consider it, and will take jurisdiction of the appeal. Kirkpatrick v. Hunt, 186 Ind. 233, 115 N. E. 781.

Cl. 1. An appeal involving the constitutionality of a statute should be taken directly to the supreme court. Indiana Board of Pharmacy v. Haag, 60 App. 218, 110 N. E. 248.

Second. All criminal prosecutions.

Third. Actions to contest the election of public officers.

Fourth. Cases of mandate and prohibition and actions or proceedings in quo warranto.

Jurisdiction of appeals in cases of mandamus is in the supreme court. State ex rel. v. Troy, 49 App. 510, 97 N. E. 552.

Fifth. Cases of habeas corpus.

Sixth. Actions to contest wills.

Seventh. Proceedings to construe wills, in which no other relief is asked.

Eighth. Proceedings to establish drains and proceedings to change or improve watercourses.

Ninth. Condemnation proceedings for the appropriation of lands for public use.

Tenth. Proceedings to establish gravel roads and proceedings to establish public highways and proceedings to vacate public highways. Eleventh. Judgments granting or denying licenses to sell intoxicating liquors.

Appeals from judgments in cases concerning the granting of licenses to sell intoxicating liquors lie to the supreme court. Galvin v. Taylor, 184 Ind. 736, 112 N. E. 513.

Twelfth. Prosecutions for contempt of the lower courts.

Thirteenth. Applications for admission to the bar to practice law and proceedings to disbar an attorney at law.

Fourteenth. All cases wherein the amount of money in controversy, exclusive of interest and cost, on the judgement [judgment] of the trial court exceeds six thousand dollars.

Fifteenth. Appeals may be taken to the supreme court from the following orders: Interlocutory orders for the payment of money or

to compel the execution of any instrument of writing or the delivery or assignment of any securities, evidences of debt, documents or things in action.

An appeal from an order of court directing the distribution of the estate of a decedent, lies to the supreme court. Billings v. Head, 184 Ind. 361, 111 N. E. 177. An appeal lies from an order of court directing the payment of money made in the settlement of a receivership. Bossert v. Geis, 57 App. 384, 107 N. E. 95.

See note to section 2977.

Sixteenth. Interlocutory orders for the delivery of the possession of real property or the sale thereof.

See note to section 1246.

In so far as an appeal is from an interlocutory order for the sale of real estate on petition of an executor, jurisdiction is in the supreme court. Nation v. Green, 65 App. 136, 116 N. E. 840.

The right of appeal is conferred by statute and if taken from an interlocutory order it is governed by this section but an appeal from judgment on demurrer to a complaint is governed by section 671, and where the record shows no judgment as to one defendant it is not a final judgment and the appeal will be dismissed. James v. Wilson, App. —, 119 N. E. 836.

Seventeenth. Interlocutory orders appointing or refusing to appoint receivers, and interlocutory orders granting or refusing to grant, or dissolving or overruling motions to dissolve temporary injunctions. Appeals from orders appointing receivers are to be taken to the supreme court. Ryder v. Shea, 180 Ind. 574, 103 N. E. 411.

No appeal lies from an order of court dissolving a temporary restraining order. Fletcher v. Barton, 58 App. 233, 108 N. E. 137.

The dissolving of a temporary restraining order is not appealable, although the judge in describing it designated it a "restraining order" or "temporary injunction," where it was issued without notice. Mason v. Milligan, 185 Ind. 319, 114 N. E. 3.

Although the complaint fails to disclose facts warranting an injunction, yet a judgment awarding an injunction not being void, prohibition will not lie to prevent its enforcement. State ex rel. Harkness v. Gleason, 187 Ind. 297, 119 N. E. 9. Eighteenth. Interlocutory orders upon writ of habeas corpus: Provided: That in any such case where an appeal is taken from an interlocutory order involving the custody of an infant, the court from which such appeal is taken shall make such order concerning the care and custody of such infant during the pendency of such appeal as shall be for the best interest of such infant.

All appealable cases, other than those herein mentioned, shall be taken to the appellate court.

This act amends section 1392 of the Revised Statutes of 1914.

In all cases not otherwise provided by statute, appeals lie to the appellate court. Chicago etc. R. Co. v. City of Bloomington, 182 Ind. 236, 105 N. E. 561.

Consideration of the power of the legislature to regulate the taking of appeals, and to define the jurisdiction of the supreme court. Curless v. Watson, 180 Ind. 86, 102 N. E. 497.