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 *Page 3 to the Appellate Court of Indiana pursuant to § 4-217, Burns' 1933, § 1362, Baldwin's 1934.

NOTE. — Reported in 39 N.E.2d 944.