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• Title: State Board Tax Commissioners v. Stanley
• Author : 281 Supreme Court of Indiana No. 18
• Release Date : January 17, 1952
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

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In our opinion the petition to transfer here does not raise any adequate ground for transfer on the merits of the issues decided by the Appellate Court. 123 Ind. App. , 105 N.E.2d 830, and 123 Ind. App. , 106 N.E.2d 812. The petition does assert as a ground for transfer under Rule 2-23 (4) (c) that the Appellate Court failed to give a statement in writing of each substantial question arising on the record and the decision of the court thereon. This brings into consideration the effect of a petition for rehearing in the Appellate Court. ""If, in disposing of the case on appeal, the court fails to give express or full consideration to questions presented, the remedy of the complaining party is by petition for a rehearing."" Stevens v. Templeton (1910), 174 Ind. 129, 131, 91 N.E. 563. ""The petition should ask a rehearing only on points that were properly presented for decision at the first hearing, and were overlooked or improperly decided."" Kilgallen v. State (1921), 192 Ind. 531, 546, 132 N.E. 682, 137 N.E. 178. Rule 2-23 only grants the right to a transfer ""within 20 days after a petition for rehearing has been denied."" Our court has held that if a petition to transfer fails to disclose that a petition for rehearing in the Appellate Court was denied, no question is presented upon the merits of the Appellate Court opinion. See our per curiam opinion as reported in Steel Construction Co. v. Rossville Alcohol & Chemical Co. (1938), 105 Ind. App. 520, 523, 16 N.E.2d 698. It is obvious that the Appellate Court should have an opportunity to correct its own omissions or errors by having the same called to its attention in a petition for rehearing. The petition for rehearing in this appeal only alleged errors in the decision on the merits. No reference therein was made to the failure of the Appellate Court to decide questions of jurisdiction or contentions as to what was properly in the record. We are not required to consider specifications of error in a petition for transfer which were not presented to the Appellate Court first in a petition for rehearing. However, the petition does present a matter of appellate procedure which we deem of sufficient importance to justify clarification in denying the transfer.

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