Filed January 13, 1942.
1. COURTS — Supreme Court — Lack of Jurisdiction to Pass Upon Petition for Rehearing Pending in Appellate Court. — The Supreme Court has no jurisdiction to pass on a petition for a rehearing, or to grant a rehearing in a cause in the Appellate Court. p. 349.
2. COURTS — Transfer of Causes — Appellate Court to Supreme Court — Petition for Rehearing Pending — Lack of Jurisdiction in Supreme Court. — Where the Appellate Court had affirmed the judgment of a lower court by an opinion in which four or more judges concurred, and thereafter attempted to transfer the case to the Supreme Court because of the failure of four judges to agree upon the question presented by petition for rehearing, the cause was ordered remanded to the Appellate Court, since the Supreme Court had no jurisdiction to pass upon the petition for rehearing, and it appeared that one of the judges of the Appellate Court had not participated in the consideration of the petition, thereby making the concurrence of only three judges necessary in order to decide the question. p. 349.
From the Morgan Circuit Court; Omar O'Harrow, Judge.
Action by John Hicks, by Wendell Hicks, his next friend, against L.S. Ayres Company, for damages for personal injuries sustained as a result of an accident occurring on defendant's premises. From a judgment for plaintiff, defendant appealed to the Appellate Court, which affirmed the judgment and thereafter transferred the case to the Supreme Court after defendant filed a petition for rehearing.
Case remanded to Appellate Court.
Fesler, Elam, Young Fauvre, and Howard S. Young, Jr., all of Indianapolis ( Homer Elliott, of Martinsville, of counsel), for appellant.
Barnes, Hickam, Pantzer Boyd, and Thomas M. Scanlon, all of Indianapolis ( S.C. Kivett, of Martinsville, of counsel), for appellee.
This case was appealed to the Appellate Court, where an opinion was filed affirming the judgment. The appellant filed a petition for a rehearing. The case comes to this court upon the 1. following certificate of the Chief Judge: "The petition for rehearing in the above entitled cause having been duly considered by the Appellate Court and four judges failing to agree as to the question presented on said petition for rehearing, this petition for rehearing is now transferred to the Supreme Court of Indiana, under the provisions of Section 4-209, Burns' Ind. Statutes 1933." This court has no jurisdiction to pass on a petition for rehearing, or grant a rehearing, in a cause in the Appellate Court.
The statute referred to provides: "Whenever, upon the determination of any appeal . . . if four  judges shall not concur in the result, the case shall be transferred to the 2. Supreme Court. . . ." But the appeal has been determined, and an opinion filed in which four or more of the judges concurred.
In Lesh v. Johnston Furniture Co. (1938), 214 Ind. 176, 13 N.E.2d 708, 14 N.E.2d 537, the Appellate Court seems to have concluded that, under such circumstances, the opinion stands unless a majority of the judges concur in an order granting a rehearing, and a rehearing was there denied, with the judges equally divided.
This case was transferred to the Supreme Court, on petition of the unsuccessful party, under § 4-215, Burns' 1933, § 1359, Baldwin's 1934, and not, as stated in the opinion, under § 4-209, Burns' 1933, § 1364, Baldwin's 1934.
The record in the instant case discloses that one of the judges of the Appellate Court did not participate. Section 4-223, Burns' 1933, § 1389, Baldwin's 1934, provides that in such cases "a concurrence of three  of the judges shall be necessary and sufficient to decide a cause and to make any order or certificate of said court."
In the case of De Lange v. Cones, Adm'r (1939), 215 Ind. 355, 19 N.E.2d 850, the Appellate Court, after dismissing the appeal, failed to agree as to the disposition of a petition to reconsider its ruling, and the case was certified here under § 4-209, Burns' 1933, § 1364, Baldwin's 1934, but in that case the jurisdictional question was not noticed.
The cause is ordered remanded to the Appellate Court.
NOTE. — Reported in 38 N.E.2d 577.