#### American Quarries Company *v.*Lay.

[Appellate Court No. 5,009.

Filed January 2, 1906.

Rehearing denied February 23, 1906.]

1. Appeal and *Error.—Transfer from Appellate Court.—Peti*tion.—Grounds.—A petition for the transfer of a case from the Appellate Court to the Supreme, under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10, assigning as a reason therefor that there was “error in the decision of said cause in the Appellate Court,” is insufficient, p. 235.

2. *Same.—Transfer from Appellate Court.—Record Not Consid*ered.—Decision.—On a petition for the transfer of a cause from the Appellate Court, the Supreme Court will look only to the decision of the Appellate Court, and not to the record, p. 235.

3. *Same.—Transfer from Appellate Court.—Ruling*Precedent.— A petition for the transfer of a cause from the Appellate Court to the Supreme must state with particularity the grounds therefor, and if a ruling precedent has been disregarded, such precedent should be stated, p. 235.

4. *Same.—Transfer from Appellate Court.—New Question of Law Erroneously*Decided.—Where a transfer from the Appellate Court to the Supreme is asked because a new principle of law has been decided erroneously, such principle should be set out particularly; and a citation of authorities thereon is advisable. p. 236.

5. *Same.—Transfer from Appellate*Court.—Petition.—Briefs.— The filing of a brief by a party who petitions for a transfer of a case from the Appellate Court to the Supreme, is optional with such party, p. 236.

Erom Lawrence Circuit Court; *James B. Wilson,*Judge.

Action by James,Lay against the American Quarries Company. Erom a decision of the Appellate Court (37 Ind. App. 386) affirming a judgment on a verdict for plaintiff for $4,500, defendant petitions to transfer said cause to the Supreme Court under suhd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

*Petition denied.*

*E. O. Field, H. B. Xurrie*and *Jolm PL. Underwood,*for appellant.

*John H. Edwards*and *Henry P. Pearson,*for appellee.

*235Jordan, J.

—This cause having been decided by tbe Appellate Court adversely to appellant, the latter has filed a petition praying tbe transfer thereof to tbe Supreme Court.

1. Tbe petition or application, omitting tbe formal parts, is as follows: “Tbe appellant in tbe above cause hereby petitions for tbe transfer of said cause to tbe Supreme Court of tbe State of Indiana, on account of error in tbe decision of said cause in tbe Appellate Court.” Section 1337] Burns 1901, cl. 2, Acts 1901, p. 565, §10, provides that “said party may * * * file in tbe Supreme Court an application for tbe transfer of tbe case to tbe Supreme Court on tbe ground that tbe opinion of said division of tbe Appellate Court contravenes a ruling precedent of tbe Supreme Court, or that a new question of law is directly involved and was decided erroneously. Tbe application shall state with particularity tbe ground or grounds relied on.” It is manifest that tbe petition or application in this case wholly fails to comply with tbe provisions of tbe above statute, for it states neither of tbe grounds therein provided for tbe transfer of a case, and for this reason alone tbe petition must be denied.

2. An application to remove a case under this statute does not perform tbe office of an appeal from tbe Appellate to tbe Supreme Court, and in considering such applications tbe latter court is not required or authorized by tbe statute in question to examine tbe record in tbe case in order to determine whether tbe ground or grounds stated in tbe petition or application are sustained. But in deciding this question tbe court is limited or confined to tbe written opinion of tbe Appellate Court given in tbe particular case. *City of Huntington v. Lusch*(1904), 163 Ind. 266, and cases cited.

3. It will be observed that tbe statute in' question declares in express and positive language that “the application shall state with particularity tbe ground or grounds relied on.” This declaration or expression makes it evident that tbe legislature intended that tbe petitioner *236should be required to state iu his petition not only the general ground or grounds mentioned in the statute and relied upon for a transfer, but in addition thereto, under the first general ground, the application should state or give the particular ruling precedent or decision of the Supreme Court contravened by the opinion of the Appellate Court.

4. If the second ground, namely, that a new question of law is involved in the case and that such question was decided erroneously by the Appellate Court, is relied upon for transferring the case, then in addition to such general statement of the ground the application should specifically or in particular state the new question of law which it is claimed is involved.

5. While we do not mean to hold that in addition to this particular statement the applicant is required under the statute in his petition to cite or give the authorities to establish that under the opinion of the Appellate Court such new question of law was decided erroneously, nevertheless a citation of or reference to authorities would certainly be helpful to and desirable by the court in determining the question. The interpretation which we have accorded to the statute in regard to the particular statement of the grounds relied upon for the transfer of a cause is a reasonable and correct exposition of its meaning. If the applicant complies with the requirements thereof, this court can, to an extent at least, be advised and aided by the application or petition in its efforts to determine whether the ground or grounds upon which a transfer is requested are sustained. This is essential in view of the fact that there is no statute or rule of court which exacts of the applicant the duty of filing along with his application a brief in support thereof, that being a matter wholly optional with him.

Petitions to remove cases under the provisions of the statute in question have multiplied within the last year, and thereby the labors of the Supreme Court have been *237greatly increased. It can not in reason be asserted that the legislature intended that a petition to transfer a cause should be sufficient which merely stated the general ground or grounds for such transfer in the language of the statute, with nothing more in particular; for under such circumstances the Supreme Court would be required to search, unaided by the applicant or his counsel, in order to discover what particular ruling precedent or decision of that court was contravened by the opinion of the Appellate Court, or as to what particular new question of law is involved, and, under the opinion of the Appellate Court, was decided erroneously. That such was not the intention of the legislature is apparent, in view of the positive declaration that the application shall state with particularity the ground or grounds relied upon by the applicant for the transfer.

Petition denied.