Atkinson v. Disher

• Decision Date: 28 May 1912
• Docket Number: No. 22,163.,22,163.
• Citation: 177 Ind. 665,98 N.E. 807
• Parties: ATKINSON et al. v. DISHER et al.
• Court: Indiana Supreme Court

177 Ind. 665

98 N.E. 807

ATKINSON et al.

v.DISHER et al.

No. 22,163.

Supreme Court of Indiana.

May 28, 1912.

Appeal from Circuit Court, Orange County; J. G. Howard, Special Judge.

Applications for a liquor license by Albert C. Disher and others, to which Roscoe Atkinson and others file remonstrances. From a judgment for applicants, the remonstrators appeal. Reversed, with instructions, and for further proceedings.R. C. Minton, Oscar Ratts, and Bayless Harvey, for appellants. George Shirts and Will J. Buskirk, for appellees.

MYERS, J.

Appellees, 12 in number, filed separate applications for license to sell intoxicating liquors at retail in French Lick township, Orange county. On March 31, 1911, a remonstrance signed by appellants, as constituting a majority of the legal voters of the township, was filed in the auditor's office of that county against the granting of license to any applicant. To this remonstrance the various applicants filed verified answers, which by the first paragraph set out the fact of an election having been held in the township April 1, 1911, resulting in a majority of 120 legal votes in favor of licensing, and, by reason of the remonstrators having called the election, the remonstrators have waived their right to remonstrate, and elected to stand on the election; that at the time the petition for the election was filed and the election asked there was no order, permit, ordinance, or other action of the board of commissioners or of any court in force against the granting of license for the sale of intoxicating liquors, but the result of the election was canvassed, determined, and filed before the board of commissioners, and an order entered on their record showing the result. The second paragraph of answer was a general denial, and the third that certain named persons, who were remonstrants, were not legal voters of the township at the time of signing, or filing the remonstrance, nor at the time their names were signed to the remonstrance by their attorneys in fact; second, that they were not residents, or legal residents of the township; third, that the two named attorneys in fact did not possess authority to sign the names of some of the remonstrators, for the reason that some of the remonstrators had no legal power to sign the remonstrance at the time, for the reason that the remonstrators had many months previously withdrawn, and revoked the powers of attorney; fourth, that the named persons did not at the time of signing the remonstrance, or at any time, deliver the powers of attorney to the attorneys in fact, authorizing them to sign any remonstrance; fifth, that the named persons on the - day of March, 1911, petitioned the board of commissioners to call the election, and asked, solicited, and encouraged voters of the township to attend the election and vote upon the question of licensing sale of intoxicating liquors, thereby revoking and canceling the powers of attorney. The matter was heard by the board of commissioners and the remonstrance sustained, and license refused each applicant. There were separate appeals to the circuit court, where two of the applicants filed amended answers, adding the names of several hundred alleged disqualified remonstrators, and adding a fourth paragraph, alleging that certain named persons whose signatures appear to the remonstrance signed by the attorneys in fact authorized the attorneys in fact to sign a remonstrance to be filed May 31, 1911, pursuant to which authority they did file a remonstrance at the July term, 1911, under which the board denied a license to the applicant, and that said persons have never authorized or employed said attorneys in fact to file any other remonstrance, or to act for them since that time, and that the signatures to the remonstrance are therefore unauthorized, and should be stricken from the remonstrance, and the other answers remained as filed in the commissioners' court, and by agreement of the parties, and order of the court, the causes were consolidated. The remonstrators demurred to the first and fourth paragraphs on the ground that they did not state facts sufficient to constitute a defense to the remonstrance. The remonstrators also filed a motion to require the applicants to make the third paragraph of answer more specific, definite, and certain by stating specifically as to each named remonstrator what particular qualification was lacking to constitute him a legal voter. The remonstrators also moved the court to strike out of the fourth subdivision of the third paragraph of answer each of the names of the remonstrators who were not challenged by the answer as filed with the board of commissioners, for the reason that challenging by the amended answer those who were not originally challenged before the board presents new issues which were not presented to the board. The remonstrators also filed a motion to strike from the third paragraph of answer all that part set out above, in substance presenting the question of filing the petition for an election, soliciting voters against licensing, etc., for the reason that the facts alleged are not sufficient to avoid the remonstrance, and that the facts alleged do not show that any power of attorney was revoked before the remonstrance was filed, and the fact that an election was held April 1, 1911, at which any remonstrator may have voted, did not affect the remonstrance, and that no such issue was presented to the board of commissioners. The remonstrators also filed a motion to strike out that part of the fourth paragraph of answer set out in substance herein presenting the question of signing a remonstrance to be filed May 31, 1907, and its filing and the consequent discharge of the power of further remonstrating, on the ground that they are not sufficient to avoid the remonstrance, or constitute a defense, and that the fact that there was a remonstrance filed May 31, 1907, or any matter connected therewith, or action of the board presents no issue of fact, as to the remonstrance in hand, and for the reason that it was not presented to the board of commissioners. Each of the demurrers and motions were overruled and exceptions reserved. The cause was tried by the court, which found that there could be but six licenses issued in the township, and found for all the applicants on the issues tendered by the remonstrance and answers. The remonstrators then moved the court to remand the cause to the board of commissioners on the ground that they alone had the right to determine the fitness of applicants, and to whom, if any, license, should be issued, which motion was overruled, and exception reserved. Two of the applicants dismissed their applications. The court then granted license to six of ten applicants, and rendered judgment against the remonstrators for costs, overruled a motion to tax costs to appellees who were not granted licenses, and rendered judgment against the remonstrants for costs, and they appeal. Errors are predicated upon all the foregoing rulings.

The evidence is not in the record. Appellees question the right to appeal on motion to dismiss on the ground that the cases of the separate applicants were several and distinct, and that they cannot be joined in one appeal. It appears from the record, as it doubtless did to the trial court, that the questions involved in each case were the same, and the cases were consolidated for trial, judgment, and appeal, without objection or exception, and as to all the cases but one by agreement of the parties, and as to the one case upon the court's order without objection or exception. Appellees' position is that the consolidation of the cases for trial, judgment, and appeal did not amalgamate into one cause all the cases, and that the consolidation was only for the purpose of trial, and that in all other respects they remained as separate causes, stated in separate complaints, and were final judgments rendered separately in favor of each plaintiff in separate causes of action; that the pleadings were not changed, or the causes of action, and that no appeal lies in one case and judgment under a joint assignment of error, and that the court on appeal cannot render any judgment which would not be separate, and cannot single out any appellee, and declare that the record shall stand as an appeal as to that one.

The issues were made up before the board separately, and separate appeals taken to the circuit court, where separate amended answers were filed by two of the applicants, to which the demurrers and motions were addressed. Thereafter the record shows consolidation by agreement of the parties, and order of the court “for the purpose of trial, on the issues tendered by the remonstrance herein, and answers, motions, and all pleadings herein shall be, and constitute, the issues, the remonstrance, answers, motions, and pleadings in all said consolidated causes.” A later appeal was consolidated with the eleven first consolidated, and an order made without objection or exception consolidating all the causes “as one action in this court for the purposes of trial, findings, judgment, and appeal, and for all other purposes, and the several applications in said cause and the remonstrance and answers thereto and demurrers and other papers and pleadings in all said causes shall be and constitute the issues in said consolidated action.” The position of appellees is that, notwithstanding this order, the causes continue to be separated causes: (2) That the court had no power to determine how many cases might come to this court under one record; (3) that whichever way the court had decided separate appeals must be taken; (4) that in case one party appeals only the record affecting him is carried up, leaving the judgment below as to the others; and (5) that courts at common law had power to consolidate cases, but not by uniting several actions in one record, and that there is no statute in this state...