Annexation of Certain Territory to City of Mishawaka, In re

• Decision Date: 16 December 1965
• Docket Number: Nos. 20147,20148,s. 20147
• Citation: 212 N.E.2d 393,138 Ind.App. 207
• Parties: In the Matter of the ANNEXATION OF CERTAIN TERRITORY TO the CITY OF MISHAWAKA, Indiana (two cases). The CITY OF MISHAWAKA, Indiana, Joseph M. Canfield, as Mayor of the City of Mishawaka, Indiana, Lynn Klaer, Vincent Moraschi, Paul S. Klein, John T. Gleissner, Joseph Simeri, Dick R. Stanley, Charles M. McKinnis, as Members of the Common Council of the City of Mishawaka, Indiana, Oscar Van de Putte, as Clerk of the City of Mishawaka, Indiana, Appellants, v. Paul MINNE, Louise Minne, John S. Connor and Margaret Connor, for Themselves and for and in Behalf of Some Sixty, More or Less, Other Property Owners affected by said Annexation, Appellees. The CITY OF MISHAWAKA, Indiana, Joseph M. Canfield, as Mayor of the City of Mishawaka, Indiana, Lynn Klaer, Vincent Moraschi, Paul J. Klein, John T. Gleissner, Joseph Simeri, Dick R. Stanley, Charles McKinnis, as Members of the Common Council of the City of Mishawaka, Indiana, Oscar Van de Putte, as Clerk of the City of Mishawaka, Indiana, Appellants, v. Roy L. CONNOR, Celia L. Connor, Vernon E. Ingle, and Phyllis J. Ingle, for Themselves and for and on Behalf of some Forty, More or Less, Other Property Owners, affected by said Annexation, Appellees.
• Court: Indiana Appellate Court

Page 393

212 N.E.2d 393

138 Ind.App. 207

In the Matter of the ANNEXATION OF CERTAIN TERRITORY TO the

CITY OF MISHAWAKA, Indiana (two cases).

The CITY OF MISHAWAKA, Indiana, Joseph M. Canfield, as Mayor

of the City of Mishawaka, Indiana, Lynn Klaer, Vincent

Moraschi, Paul S. Klein, John T. Gleissner, Joseph Simeri,

Dick R. Stanley, Charles M. McKinnis, as Members of the

Common Council of the City of Mishawaka, Indiana, Oscar Van

de Putte, as Clerk of the City of Mishawaka, Indiana, Appellants, v. Paul MINNE, Louise Minne, John S. Connor and Margaret

Connor, for Themselves and for and in Behalf of

Some Sixty, More or Less, Other Property

Owners affected by said

Annexation,

Appellees.

The CITY OF MISHAWAKA, Indiana, Joseph M. Canfield, as Mayor

of the City of Mishawaka, Indiana, Lynn Klaer, Vincent

Moraschi, Paul J. Klein, John T. Gleissner, Joseph Simeri,

Dick R. Stanley, Charles McKinnis, as Members of the Common

Council of the City of Mishawaka, Indiana, Oscar Van de

Putte, as Clerk of the City of Mishawaka, Indiana, Appellants, v. Roy L. CONNOR, Celia L. Connor, Vernon E. Ingle, and Phyllis

J. Ingle, for Themselves and for and on Behalf of

some Forty, More or Less, Other Property

Owners, affected by said

Annexation,

Appellees.

Nos. 20147, 20148.

Appellate Court of Indiana, In Banc.

Dec. 16, 1965.

Rehearing Denied Jan. 20, 1966.

See 213 N.E.2d 349

[138 INDAPP 208]

R. Wyatt Mick, Jr., Mishawaka, Joseph A. Roper, Chapleau, Roper, McInerny & Farabaugh, South Bend, for appellants.

Paul J. Schwertley, South Bend, for appellees.

WICKENS, Judge.

Two annexation ordinances of the appellant city were affected by the trial court judgment.

Here appellants assert that error was committed by the overruling of appellants' motion to dismiss and motion for new trial which were based solely upon a question of jurisdiction.

The alleged lack of jurisdiction arises from the construction of Acts 1905, ch. 129, Sec. 243, p. 219 as amended, Sec. 48-702 Burns' 1963 Replacement. That part of the statute under question is the second sentence. For reference here, the first part of such section is set out and we have emphasized certain parts:

[138 INDAPP 209] 'Whenever territory is annexed to a city whether by general ordinance defining the city boundaries, or by special ordinance for the purpose of annexing territory, an appeal may be taken from such annexation by either a majority of the owners of land in the territory or by the owners of more than seventy-five percent [75%] in assessed valuation of the real estate in the territory, if they deem themselves aggrieved or injuriously affected, by filing their remonstrances in writing against such annexation, together with a copy of such ordinance, in the circuit or superior courts of the county where such territory is situated or with the judge thereof in vacation, within thirty days after the last publication provided for in section 242 [Sec. 48-701]; such written remonstrance or complaint shall state the reason why such annexation ought not in justice take place. Upon receipt of such remonstrance the court or the judge thereof in vacation shall determine whether it bears the necessary signatures and complies with the requirements of this section. In determining the total number of landowners of the area and whether or not signers of the remonstrance are landowners, the names as they appear upon the tax duplicate shall be prima facie evidence of such ownership. In ascertaining the number of landowners of the area and for the purpose of determining the sufficiency of the remonstrance as to the number of landowners required to constitute a majority, not more than one person having an interest in a single property, as evidenced by the tax duplicate, shall be considered a landowner.'

Appellants insist that jurisdiction is not conferred on the trial court under the foregoing section unless that court makes the determination that the remonstrance and complaint bear the necessary signatures and comply with the requirements of said Sec. 48-702 within 30 days after the last publication of the ordinance.

In this contention appellants rely upon the opinion of this court in Daubenspeck v. City of Ligonier (1962), 135 Ind.App. 565, 183 N.E.2d 95 (Transfer Denied 191 N.E.2d 100).

There is no factual dispute here. The trial court did not within such 30 day period determine whether such remonstrances and complaints bore the necessary signatures and [138 INDAPP 210] whether they complied with the requirements of the section quoted. In such period, however, such remonstrances and complaints were presented to the clerk of the trial court and marked 'filed' with a dated mark, the attorney for appellees appeared before the judge and the judge's docket sheet was made to show that at the request of remonstrators the court dispensed 'with necessity of filing of copies of complaint with each defendant.' Also, the record does establish that the proper notices were last published on December 28, 1961; the presentation of the papers to the clerk and the judge's docket entry as above was on January 25, 1962; and that on April 2, 1962 the court found 'that a majority of the owners of land within the area described in the annexation ordinance have joined in the remonstrance herein.' That finding is not questioned here.

It is appellants' contention that the only issues here were 'forever settled' by the decision in Daubenspeck. In that cause interpreting the same section of the statute quoted here, this court did say, at page 572 of 135 Ind.App., 183 N.E.2d 95, that the determination of the sufficiency of the remonstrance was a prerequisite to filing an appeal in court.

However, before making such statement this court had answered what it described as 'the sole question' presented. That is, it had held that a part of the 1881 Code of Civil Procedure was not applicable to an annexation appeal. It therefore appears that the statement mentioned and which is relied upon by appellants may be mere dictum. It is also to be noted that in denying transfer in Daubenspeck our Supreme Court said it did not thereby approve of all the language used by this court.

We also observe that after the Daubenspeck decision our Supreme Court had an occasion to pass upon a phase of Sec. 48-702. In its opinion in Petercheff et al. v. City of Indianapolis (1961), 242 Ind. 490, at page 495, 178 N.E.2d 746, at page 748, the court said:

[138 INDAPP 211] 'In the case before us it is clear that no action is taken by the court under Burns' Sec. 48-702 (1961 Cum.Supp.), supra, which could be construed as a finding until the court makes a determination as to the sufficiency of the remonstrance. Here it is unquestioned that prior to the making of any such determination appellee had filed motion to withdraw said names with accompanying exhibits of said signatories requesting said withdrawal.

'We must conclude that the withdrawal was therefore timely made and...