Annexation of Territory to City of Muncie, In re

• Citation: 276 N.E.2d 198,150 Ind.App. 245
• Decision Date: 13 December 1971
• Docket Number: No. 671A113,No. 1,671A113,1
• Parties: In the Matter of Attempted ANNEXATION OF TERRITORY TO the CITY OF MUNCIE
• Court: Indiana Appellate Court

Page 198

276 N.E.2d 198

150 Ind.App. 245

In the Matter of Attempted ANNEXATION OF TERRITORY TO the

CITY OF MUNCIE.

No. 671A113.

Appellate Court of Indiana, Division No. 1.

Dec. 13, 1971.

Corbett McClellan, Muncie, for appellant.

Frank E. Spencer, Indianapolis, for appellee.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--A group of citizens seek to appeal after their remonstrance against a certain ordinance annexing territory to the City of Municie, Indiana, was held to be insufficient by the trial court.

The muddled facts as best they can be gleaned from the briefs and the record in this case, are more readily understood by a chronological statement of what transpired in the trial court:

March 23, 1967 --- Remonstrance filed against the City of Muncie with respect to the annexation of certain territory to the city. Corbett McClellan shown as attorney of record for Plaintiff-Appellants (Remonstrators).

June 9, 1970 --- Petition of Intervenors, Moon, Glaser, Mitchell, McCammanck and Moore (Intervenors) To Intervene granted by the court.

December 28, 1970 --- Writ of Mandate by Indiana Supreme Court appointing Sue Shields Special Judge. Special Judge orders Auditor of Delaware County to prepare and file a certified report as to the number of property owners, assessed valuation and other information relating to the sufficiency of the remonstrance.

January 5, 1971 --- Corbett McClellan files withdrawal of appearance which is noted in the minutes of the court and Warner, Clark & Warner by Charles R. Clark enter their appearance on behalf of Remonstrators. Court takes no action allowing withdrawal of Mr. McClellan or approving or disapproving such change of counsel. Report of Auditor filed pursuant to previous court order. Charles R. Clark on behalf of Remonstrators files Motion to Set Aside prior order of the court entered December 28, 1970. (No action taken by the court.) Cause set for hearing at 10:30 on January 18, 1971, on question of sufficiency of the remonstrance.

January 18, 1971 --- Petition to Intervene filed by City of Muncie and hearing on sufficiency of remonstrance re-set for 10:30 A.M. on February 1, 1971, and notice thereof ordered made upon the Remonstrators, Intervenors and the City of Municie. Also cause set for pre-trial conference on January 20, 1971 (and again on February 23, 1971.)

March 3, 1971 --- Charles R. Clark of Warner, Clark & Warner files Motion to Withdraw Appearance on behalf of Remonstrators, which Motion is then set for hearing on March 17, 1971; hearing on sufficiency of remonstrance re-set for 1:30 on March 26, 1971, and notice of the hearing on the Motion and the hearing on the remonstrance were ordered published in a newspaper of general circulation in Delaware County twice, one week apart, the last publication being prior to the 17th day of March, 1971.

March 17, 1971 --- Rroof of publication filed. Court holds hearing on Motion of Warner, Clark & Warner to withdraw appearance and court allows Remonstrators' attorneys of record to withdraw.

March 26, 1971 --- Court renders judgment declaring the remonstrance insufficient and orders same stricken of record. Court specifically finds 'that proper notice of this hearing has been provided to all interested parties.' Neither Remonstrators or counsel on their behalf are present, although Intervenors appear by counsel. Court bases its judgment on the Auditor's reports indicating that remonstrance was prima facie insufficient under applicable statutes.

April 15, 1971 --- Corbett McClellan files appearance for Remonstrators and a Motion to Correct Errors.

April 22, 1971 --- Motion to Correct Errors submitted and overruled.

Omitting formal parts, Remonstrators' Motion to Correct Errors filed on April 15, 1971, enumerated these errors:

1. Denial of a fair trial to these Remonstrators in that the Court failed to properly and correctly count the names of the Remonstrators and failure of the Court to properly and correctly count the names of the property owners in the proposed area in Center Township.

2. Denial of a fair trial and irregularity in the proceedings in that the Court entered a judgment in these proceedings without granting a hearing as to the manner used by the Auditor to ascertain the Landowners of Center Township.

3. Denial of a fair trial and irregularity in the proceedings in that the trial court entered a judgment on the report of the Auditor when there was no evidence as to the day, date, and year of the records used by the Auditor, as they relate to the date of the city ordinance, in the Auditor's count of the Center Township Landowners affected thereby.

4. Abuse of discretion by the trial court in that the trial court entered a judgment on the report of the Auditor when there was no evidence as to the day, month, and year used by the said Auditor when he made an examination of his records or the tax duplicates in making his report of the Landowners of Center Township affected thereby.

5. Denial of a fair trial and irregularity in the proceedings in that the trial court entered a judgment in these proceedings based upon a report of the Auditor as to valid signatures when there was no evidence concerning the manner in which the Auditor determined signatures to be either valid or invalid, as they relate to being counted as Remonstrators.

6. Denial of a fair trial and irregularity in the proceedings in that the trial court entered a judgment in these proceedings based upon a report of the Auditor without evidence as to the manner and standards used in determining the interest in real estate of each person whose name appears as a Remonstrator.

7. Abuse of discretion by the trial court in that the trial court entered a judgment in these proceedings based upon a report of the Auditor as to valid signatures when there was no evidence concerning the manner in which the Auditor determined signatures to be either valid or invalid as they relate to being counted as Remonstrators.

8. Abuse of discretion by the trial court in that the trial court entered a judgment in these proceedings based upon a report of the Auditor without evidence as to the manner and standards used in determining the interest in real estate of each person whose name appears as a Remonstrator.

9. The decision of the trial court is not supported by sufficient evidence upon all the necessary elements of determining the validity of the remonstrance, in the following particulars, to-wit:

A. There is no evidence before the Court as to the manner, standards and methods used by the Auditor in determining the Landowners of Center Township affected thereby;

B. There is no evidence before the Court as to the manner and methods of the Auditor in determining the validity or invalidity of a signature on his return to the Court;

C. There is no evidence before the Court concerning the effective day, month and year to which the Auditor referred to in making his report to the Court concerning the Landowners of Center Township.

10. The decision of the trial court is contrary to law in the following particulars, to-wit:

A. The Court based its entry of March 26, 1971, upon unsworn testimony of the County Auditor;

B. The Court in its original order to the Auditor of Delaware County ordered the Auditor to inform the Court of the interest in real estate of each person who signed the remonstrance. There is no showing of any kind as to the manner in which the Court made determination as to the validity of the remonstrance or the Auditor's return;

C. The Court in its entry of March 26, 1971, did not make a determination within the meaning of the statute in that the statute contemplates that there will be evidence presented to the Court and the right of examination and cross examination shall exist;

D. The Court failed to grant the Remonstrators the right to present evidence concerning the number of Landowners in Center Township affected thereby, and the number of Remonstrators who had signed the remonstrance.

E. The Court by its actions violated Article I, Section 12 of the Indiana Constitution in that by its failure to hear evidence of the these Remonstrators it violated the right to due course of law.

11. Denial of a fair trial in that the Court heard no evidence by Remonstrators concerning the number of Landowners in Center Township affected thereby, and the number of Remonstrators who had signed the remonstrance.

ISSUES --- The Remonstrators contend that it was error for the court to rely solely on the Auditor's report and further that they were denied a fair trial and an opportunity to be heard because they received no actual notice of the hearing on March 26, 1971, and that the two weeks publication of notice is contrary to Ind.Ann.Stat. § 2--807 (Burns' 1946 Repl.) which provides for three weeks publication. Further, that when the court permitted Mr. Clark to withdraw his appearance on March 17, 1971, the Remonstrators were left without any legal counsel.

Intervenors take the position there are no issues before the court for determination due to certain defects in appellant's brief and the record, and that in fact Remonstrators had notice of the hearing on March 26, 1971, and their Motion to Correct Errors in no way raises the question of adequacy of notice.

The issues...