A writ of error to the highest court of a state must be
dismissed when the judgment is one of an. intermediate court which
the highest court has declined to review for want of jurisdiction.
Writ of error to review 131 N.E. 776 dismissed.
Memorandum opinion by MR. JUSTICE SUTHERLAND.
This is a writ of error to the Supreme Court of Indiana when,
clearly it should have been to the state appellate court.
The action was brought in the Superior Court for Tippecanoe
County. A demurrer to the complaint was sustained. An appeal was
allowed to the supreme court, but that court, of its own motion,
entered an order transferring the cause to the appellate court for
want of jurisdiction. The Appellate Court thereupon took the case,
received the briefs of counsel, heard oral arguments, and affirmed
the judgment of the trial court. A petition for rehearing was
submitted and denied. Plaintiffs in error then applied to the
supreme court for an order to vacate its former order of transfer
or, in the alternative, for a writ of error coram nobis,
which the supreme court denied.
It therefore appears that the supreme court refused to take the
case on appeal for want of jurisdiction, and the judgment of the
highest court of the state in which a decision
Page 261 U. S. 253
in the suit could be had, Judicial Code § 237, is that of the
appellate court to which the writ should have been directed.
The writ of error must therefore be dismissed on the authority
of Western Union Telegraph Co. v. Hughes, 203 U.
; Lane v. Wallace,
131 U.S. Appendix,
CCXIX; Norfolk & Suburban Turnpike Co. v. Virginia,
225 U. S. 264
225 U. S. 269
Second National Bank v. First National Bank, 242 U.
; Prudential Ins. Co. v. Cheek,
259 U. S. 530