Anthrop v. Tippecanoe School Corp.

• Decision Date: 09 May 1973
• Docket Number: No. 3--1272A99,3--1272A99
• Citation: 156 Ind.App. 167,295 N.E.2d 637
• Parties: Gerry J. ANTHROP and Rose F. Anthrop, Defendants-Appellants, v. TIPPECANOE SCHOOL CORPORATION, Plaintiff-Appellee, and Fred M. Kuipers and Joan C. Kuipers, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 637

295 N.E.2d 637

156 Ind.App. 167

Gerry J. ANTHROP and Rose F. Anthrop, Defendants-Appellants, v. TIPPECANOE SCHOOL CORPORATION, Plaintiff-Appellee and Fred M. Kuipers and Joan C. Kuipers, Defendants-Appellees.

No. 3--1272A99.

Court of Appeals of Indiana, First District.

May 9, 1973.

Thomas W. Munger, Lafayette, for defendants-appellants.

Paul D. Ewan, Schultz, Ewan & Burns, Lafayette, for plaintiff-appellee.

LOWDERMILK, Judge.

On October 24, 1969, the Tippecanoe School Corporation, appellee (hereinafter referred to as 'School') brought an action against appellants Gerry J. Anthrop and Rose F. Anthrop (hereinafter referred to as 'Anthrop') and Fred M. Kuipers and Joan C. Kuipers, appellees herein (hereinafter referred to as 'Kuipers') for the purpose of condemning land of Anthrop for School uses. Appellees Kuipers were named party defendants, as they held a mortgage on the real estate being condemned.

Motions were filed to the complaint and were disposed of by the court adverse to Anthrop on March 17, 1970, at which time the court ordered the real estate condemned and appointed appraisers to assess Anthrop's damages. The appraisers filed their report on April 3, 1970, after which Anthrop timely filed exceptions thereto.

Thereafter, on June 25, 1970, Anthrop filed a motion to determine aggregate award of the appraisers in which they alleged ambiguity in the appraisers' report. The court found no ambiguity and that the appraisers' report assessed total damages to Anthrop of $60,000. This order was appealed by Anthrop to the Appellate Court, was transferred to the Supreme Court, and on December 8, 1970, our Supreme Court issued an order staying proceedings on Anthrop's motion until further ordered. This order remained in full force and effect until January 4, 1972, when our Supreme Court ordered it set aside and vacated, 277 N.E.2d 169.

The School paid into the office of the Tippecanoe Circuit Court Clerk on September 16, 1971, $60,000, the same being the damages assessed in the appraisers' report, and also demanded possession of the real estate. Anthrop was refusing to vacate the premises and the School filed, on October 13, 1971, a petition for writ of assistance which was, on November 19, 1971, ordered by the Tippecanoe Circuit Court to issue on December 1, 1971, for the sheriff to put the School in possession of the condemned real estate.

On November 30, 1971, Anthrop filed a petition to fix appeal bond, to stay proceedings and to stay the writ of assistance to allow Anthrop to post the necessary bond. Anthrop filed, on December 20, 1971, in our Supreme Court, an appeal of the order issued directing the writ of assistance.

On January 6, 1972, the trial court overruled Anthrop's motion to set aside the order for writ of assistance, denied Anthrop's demand for determination of benefits due under the Relocation Assistance Act, and set the appeal bond in the amount of $60,000. Anthrop filed a motion to reduce the bond which the trial court overruled, after which Anthrop filed a petition with our Supreme Court to reduce the appeal bond.

Thereafter, on January 24, 1972, the sheriff of Tippecanoe County served a writ of assistance, took possession of the condemned real etate from Anthrop, and delivered it to the School.

The next day, January 25, 1972, the only daily newspaper in Lafayette published a story, including pictures, concerning the Anthrop family's forcible eviction from their home. The next day, January 26, 1972, the School filed a verified emergency affidavit for change of venue from the county, executed by Ronald L. Giese, president of the School Corporation, which was granted over Anthrop's objections and the venue of the case removed to the Benton Circuit Court.

The Benton Circuit Court assigned the cause for trial, to which assignment Anthrop objected for the reason the trial should be deferred pending the Supreme Court appeal. Anthrop's objection was overruled and the motion for continuance was denied.

On the same date the cause was re-assigned for trial on May 30, 1972, at which time Anthrop withdrew the written exceptions to the appraisers' report and the Judge of the Benton Circuit Court thereupon entered judgment for Anthrop in the amount of $60,000, the same being the amount of the appraisers' award, plus interest. Said court did, on June 1, 1972, enter a nunc pro tunc order as of May 30, 1972, which order declared the school to be the fee simple owner of the said real estate and included Kuipers as parties entitled to the damages awarded.

Anthrop timely filed a motion to correct errors which was later overruled and from which Anthrop now brings this appeal.

This court adopts the summarization of the motion to correct errors, as summarized by Anthrop's attorney, which is in the words and figures as follows, to-wit:

'1. Uncorrected error of law in issuing writ of assistance because plaintiff was not entitled thereto.

2. Denial of fair trial by order of court in issuign writ of assistance.

3. Uncorrected error of law in issuing and executing writ of assistance without having first given defendants all relocation assistance of 1971 benefits.

4. Denial of fair trial by abuse of discretion in fixing unreasonable appeal bond.

5. Uncorrected error of law--fixing unreasonable appeal bond.

6. Uncorrected error of law in granting change of venue from county.

7. Denial of fair trial resulting from abuse of discretion in granting change of venue from county.

8. Denial of fair trial from abuse of discretion in denying defendants' request for continuance.

9. Denial of fair trial by order of court granting protective orders.

10. Uncorrected error of law in entering two (2) order for May 30, 1972, wherein the defendants (2) Kuipers were given an interest in the judgment for damages and interest.

11. Decision is contrary to law because it (A) improperly gave possession of the real estate of plaintiff and (B) gave the defendants Kuipers an interest in the damages awarded.

12. Statute under which proceedings are brought it unconstitutional.'

Under Rule AP. 8.3(A)(7) we shall consolidate and treat as one certain of the motions to correct errors. Under this consolidation we shall first treat specifications of errors 1, 2, 3, and 11(A).

Anthrop contends that the eviction order's correctness and validity depended upon whether or not at the times of the issuance and the service of the execution of the writ of assistance, School, condemnor, was in fact entitled to the immediate possession of the real estate. And, further, the eviction depends upon whether the School acquired title by virtue of the appropriation order and, if not, whether the School (1) had paid the amount of the appraisers' award within the time provided by law and (2) had complied with the Indiana Relocation Assistance Act of 1971. They further contend that both latter obligations must be performed as conditions precedent to issuance of a writ of assistance, and the failure of one or both of the conditions precedent would make the order of the Tippecanoe Circuit Court directing Anthrop's eviction and its forcible execution by the sheriff reversible error and the same would apply to the order of the Benton Circuit Court in affirming the acts of the Tippecanoe Circuit Court and in determining the condemnor (School) to be the legal owner of Anthrop's real estate.

Anthrop cites as authority for his contentions the case of State v. Flamme (1939) 217 Ind. 149, 26 N.E.2d 917, and which case in speaking of condemning real estate holds that the taking is not regarded as complete until the compensation fixed has been paid or secured, or the condemnor has taken actual possession of the land, and until that time the proceedings may be abandoned or discontinued. This case further holds:

'The appellant contends that the provision of the statute with reference to the payment of the judgment within one year after its rendition is positive and self-executing, and that if payment is not so made the condemnor finds itself in the same position 'as though no such appropriation or condemnation had been begun or made.' We are of the opinion that such is the correct interpretation of the statute.'

We agree with the law in the cited case but must hold that the case is not in point. IC 32--11--1--11, the same being Burns Ind.Stat.Ann. § 3--1710, provides, in part, as follows, to-wit:

'Damages--Failure to pay--Nonuser--Effect.--Should the person, corporation or other body seeking such appropriation fail to pay the damages assessed within one (1) year after the report of the appraisers is filed, in case no exceptions are filed thereto, or where exceptions are filed to the report of the appraisers, shall fail to pay the adamages assessed if judgment is rendered against such exceptions, or to pay the judgment and costs in case such exceptions are sustained, within one (1) year after the rendition of any such judgment, provided such judgment is not appealed from; or in case of such appeal shall fail to pay the damages assessed or the judgment rendered in the circuit or superior court, within one (1) year after final judgment of affirmance or reversal is rendered in the Supreme or Appellate Court; . . . shall forfeit all right in and to such real estate or other property as fully and completely as though no such appropriation or condemnation had been begun or made. . . .' (Our emphasis.)

Anthrop contends that the phrase 'in case no exceptions are filed thereto' refers solely...