THOMPSON v. TRAVIS

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.

PER CURIAM.

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.