65 Ind. App. 136 | Ind. Ct. App. | 1917
Since the filing of the opinion herein dismissing the appeal, counsel for appellee have filed a petition in which they suggest that the jurisdiction of the appeal is in the Supreme Court, and ask that the case be transferred to that court, under §1397 Burns 1914, Acts 1901 p. 568.
Appellants have filed a response to said petition in which they concede the correctness of appellee’s contention and say in effect that the appeal was taken by them to this court under a misapprehension of the method of transfer by which the two cases of Daniels v. Bruce (1911), 176 Ind. 151, 701, 95 N. E. 569, 577, reached the Supreme Court, they thinking that said cases were transferred from this court under §1394, cl. 2, Bums 1914, Acts 1901 p. 567, when in fact such transfer was made under §1397 Burns 1914, supra.
The judgments appealed from in these cases and in the instant case are identical in character in the sense that they are each a judgment or interlocutory order for the sale of real estate made on a petition to sell real estate to make assets to pay the debts of an estate of a decedent, the petition in that case being by the administrator, de bonis non, with the will annexed, while in this case it is by the executor of the will of the decedent.
As before indicated, but for the fact that such matters enter into the judgment appealed from and present the real questions involved in the appeal, we would have no doubt but that, under the statute and the authorities above cited, jurisdiction of this appeal is in the Supreme Court; and while such fact might furnish some reason for holding that jurisdiction of this appeal is in this court, we feel that, in as much as the final determination of such question is with the Supreme Court, it should be determined in advance of our taking any further steps in the case.
For the reasons indicated, the order of dismissal of the appeal heretofore made is set aside, and the opinion therein withdrawn, and the case transferred to the Supreme Court under §1397 Burns 1914, supra. This action of the court renders unnecessary any further or separate action on the petitions for rehearing.
Note. — Reported in 116 N. E. 840. Executors and administrators: sale of real estate, parties and procedure, 18 Cyc 704, 743, 754, 755, 80 Am. St. 100.