*576On Petition fob Reheabing.
Wiley, P. J.Appellant has filed a petition for a rehearing, and bases such petition upon three grounds: (1) That the appeal involves the necessity of overruling a decision of the Supreme Court in the case of Haggerty v. Wagner, 148 Ind. 625; (2) the constitutionality of §§2652, 2660, Burns 1901, is involved; (3) “Lastly, in the case under consideration, there is clearly presented by the reply brief both the federal and State constitutionalities and conflicts of the opinion of judge McCabe with the provisions of §2652 Burns 1901, §2491 R. S. 1881, and with the State and federal constitutions.” We have quoted literally the last reason assigned in the petition for a rehearing.
In his original and reply briefs, counsel for appellant vigorously attacks the decision in the case of Haggerty v. Wagner, supra, urges that the case was erroneously decided, and insists that it ought to be overruled. This court is bound by the law as there declared, and our decision must conform to it, unless we are of the opinion that the law was wrongly declared, in which event, our way is made plain by the statute.
This case was decided after the act of 1901 went into eifect, and §10, subd. 1, of that act provides that, “If in any case, two of the judges of either division are of the opinion that a ruling precedent of the Supreme Court is erroneous, the case, with a written statement of the reasons for such opinion, shall be transferred to the Supreme Court.” From the fact that we did not transfer the case to the Supreme Court, the conclusion is irresistible that two of the judges were not of the opinion that the ruling precedent of the latter court, as declared in the Haggerty ease, was erroneous. This disposes of the first reason assigned in the petition for a rehearing.
If we concede that the third reason assigned for a rehearing, which we have quoted in full above, presents any *577question, it may be considered with the second, for it relates to the same subject-matter, and may be considered under the single proposition: Was the constitutionality of any statute involved, and was such question properly presented? It is claimed by counsel that the question was raised and properly presented by the reply brief. No claim is made that it was raised by the original brief.
It is proper to state that this case was appealed to the Supreme Court, which court alone had jurisdiction of the subject-matter involved prior to the act of March 12, 1901. By that act jurisdiction was conferred upon this court in all actions wherein the title to real estate is involved. Upon the taking effect of that act, it became the duty of the Supreme Court to transfer to this court all cases there pending, which would have been primarily appealable to the Appellate Court.
"When the case under consideration was transférred to this court, the reply brief was on file, and came here with the record. By §1362 Burns 1901, the transfer of a cause from oAe court to the other court is made final, and that section was not repealed by the act of March 12, 1901. It was held in the case of Griffee v. Town of Summitville, 10 Ind. App. 332, that the transfer of a cause by the order of the Supreme Court determines the question of jurisdiction. This is necessarily true. Until the Appellate Court was created, and certain jurisdiction conferred upon it, all appellate jurisdiction was in the Supreme Court. Primarily all appellate jurisdiction is still in that court, and the Appellate Court has only such jurisdiction as is expressly conferred upon it by statute. "When this cause was transferred to this court, we must presume that the Supreme Court considered the questions presented by the record, and discussed by counsel, and reached the conclusion that no constitutional question was raised and duly presented. In other words, the transfer being final, we must hold that the Supreme Court, in making the transfer, conclusively deter*578mined that “the constitutionality of a statute, state or federal, or the proper construction of a statute,’.’ were not in question, and that such question was not duly presented. The decision of the Supreme Court in transferring the case to this court is binding upon the parties and can not be attacked collaterally. This being true, the duty of this court was plain, and that duty led us to an affirmance of the judgment below, in harmony with a “ruling precedent” of the Supreme Court.
This court has a right to assume that when the Supreme Court sends a case here by transfer, it thereby determines that no question was involved that would deprive us of jurisdiction.
This disposes of every question raised by the petition for a rehearing, and it is overruled.