Board of Com'rs of Vanderburgh County v. Sanders
| Decision Date | 31 December 1940 |
| Docket Number | 27385. |
| Parties | BOARD OF COM'RS OF VANDERBURGH COUNTY v. SANDERS. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Vanderburg County; Emra H. Ireland, Special Judge.
Paul H. Schmidt and Henry Buente, both of Evansville, for appellant.
Lockyear & Lockyear and James G. Crenshaw, all of Evansville, for appellee.
This is an action by appellee, for himself and on behalf of all others similarly situated, and those having a common or general interest in this matter, against appellant for the recovery of building, erection, construction, and repair permit and inspection fees, alleged to have been paid by appellee and others, unnamed, by virtue of the provisions of an ordinance passed by appellant under the provisions of Section 26-2301 et seq., Burns' Indiana St.1933, Section 5205-1, Baldwin's Ind. Statute May 1935 Supplement, Acts 1935, Ch. 239, p. 1239. The several payments were paid by appellee and others, unnamed, to the Department of Buildings of Vanderburg County Planning Commission, which, appellee alleged, had no authority to collect. The fees so collected were deposited in the general fund of said county. Appellee questions the validity of the ordinance enacted by appellant requiring the payment of fees. Appellant answered the complaint by a general denial. The cause was tried by the court without the intervention of a jury.
There was a finding and judgment in favor of appellee in the sum of $11.70. In addition, the court ordered appellant, within 10 days, to furnish the clerk of said court a true and correct list 'of the names of the persons, firms and corporations who had applied for a permit or license for the construction alteration, or improvement of buildings within Vanderburg County outside the corporate limits of the City of Evansville,' and opposite each name the amount so paid by each. The clerk was ordered to enter said list of records as a part of the judgment of the court in this cause. Such a list was filed with the clerk, and afterwards the court rendered judgment against appellant and in favor of each of said persons for the amount shown by said list so filed. The list filed with the clerk contained the names of 3,922 persons, firms, and corporations which had paid fees required by the ordinance. The amount of the fees varied in amounts, ranging from $.50 to $12. The total amount of fees paid was $9,956.07.
Appellant filed its motion for a new trial, which was overruled by the court. On appeal the only error assigned is the overruling of its motion for a new trial.
One of the questions presented by the motion for a new trial is whether a valid judgment could be rendered in favor of the unnamed plaintiffs, and whether or not the appellee had such a general or common interest in the subject matter with the other parties for whose benefit the action was prosecuted as will permit the appellee to prosecute this action in his representative capacity. We are of the opinon that this question must be answered in the affirmative.
Section 2-220, Burns' Indiana Statutes, 1933, Section 35 Baldwin's Ind. Statute 1934, provides: '* * * when the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.'
It has been held by this court that this statute announces an equitable rule, and is applicable to actions in law as well as in equity. Tate v. Ohio, etc., Railroad Co., 1858, 10 Ind. 174, 71 Am.Dec. 309; Colt v. Hicks, 1932, 97 Ind.App. 177, 179 N.E. 335. In Gaiser v Buck, 1931, 203 Ind. 9, 179 N.E. 1, 82 A.L.R. 1348, it was held that one or more creditors may maintain an action against the stockholders in a bank to enforce double liability for the benefit of all the parties, where the creditors are numerous and it is not practical to bring all of them before the court. In Shoemaker, Auditor v. Board of Commissioners et al., 1871, 36 Ind. 175, the board of commissioners and one John Brownlee sought to recover alleged illegal and unlawful taxes levied and collected against real and personal property located in Grant County. The action was brought by the plaintiffs for and on behalf of all the taxpayers. The question was raised as to whether or not the plaintiffs had such a general and common interest with all of the other taxpayers of said county as would come within the provisions of the statute and would permit them to sue in a representative capacity. While it was held in that case that the plaintiff could not maintain the action for reasons stated in the opinion, yet the court made the following observation: 'If it had been alleged and shown that he [Brownlee] owned taxable real estate, and had paid his taxes for 1869, and that he had a common and general interest with many persons, or that the parties were numerous and that it was impracticable to bring them all before the court, then he might have maintained an action for himself, and for the benefit of the whole, in a cause where the facts entitled them to relief.' The record in this case shows that 3,922 parties were interested in this action. It would be most impracticable to say that all of them must join as plaintiffs or that each must institute a separate action. It is clear that plaintiff's interest is general and common with the interest of the other parties, and comes clearly within the provisions of the above-mentioned statute.
It is contended that this appeal should be dismissed for the reason that all parties to the judgment were not named in the assignment of error. The plaintiff, Ora Sanders, was the only party named as appellee in the assignment of error. See rule 7, of the Supreme and Appellate Courts, Section 2-3212 and 2-3213, Burns' Indiana Statutes, 1933, Sections 476, 477, 474, Baldwin's Ind. Stat. 1934.
By the provisions of section 2-220, Burns' Indiana Statutes, Section 35, Baldwin's Ind.Stat. 1934, supra, it is provided that in a class action, 'one or more [persons] may sue or defend for the benefit of the whole'. If by the terms of the statute one or more may sue or defend for the benefit of the whole in the trial court, likewise such person or persons may prosecute or defend the action on appeal. The statute must be construed as permitting one or more who begin the action for the benefit of the whole, or who defend for the benefit of the whole, as authorizing such person or persons to so prosecute or defend throughout all the stages of such action, including an appeal to this court. So it seems to us that under the statute appellee Ora Sanders as representative of the class for whose benefit this action was instituted is the only necessary party to be named as appellee on appeal.
We therefore conclude that the appeal should not be dismissed.
In June, 1935, the board of commissioners of Vanderburgh County appointed a county planning commission under the provisions of Section 26-2301 to 26-2309, Burns' Indiana Statutes, 1933, Sections 5205-1 to 5205-9, Baldwin's Ind. Stat. May 1935 Supplement, Acts 1935, Ch. 239, p. 1239. After the personnel of said commission had been completed, and said commission duly organized, it submitted to the board of commissioners of said county the ordinance here in question for adoption. The record of the board of commissioners of November 25, 1935, shows the following entry:
On December 2nd, 1935, it was ordered that notice of a public hearing on the adoption of said ordinance be given by publication and posting of notices. Such notice was given and thereafter said ordinance was duly adopted.
Said ordinance is as follows:
'An Ordinance to Regulate the construction, repair, alteration, maintenance and equipment of buildings, in Vanderburgh County, as authorized by an Act passed by the Indiana General Assembly and approved March 12, 1935, entitled 'An Act concerning the preparation and adoption of plans for the physical and economical development of Counties.'
'Whereas, The City of Evansville has grown to such an extent that a majority of new structures will obviously be erected in that portion of Vanderburgh County, lying outside of the limits of the City of Evansville,
'Whereas, It is deemed necessary to direct the orderly development of the outlying residential districts in Vanderburgh County, to prevent the erection of unsightly shacks, to prevent fire hazards, to promote health and to protect and increase real estate values.
'Whereas, the building contractors, carpenters, masons, mechanics of the building trades and the general public have, in the ten years since its enactment, become familiar with and have been guided by the Evansville Building Code.
'Whereas, the Evansville Building Code has proved practical in its application and thorough in detail, and to save the tax-payers the expense of publishing so lengthy an ordinance.
'Therefore, Be It Ordained, By the County Commissioners of ...
To continue reading
Request your trial
-
Bd. of Com'rs of Vanderburgh Cnty. v. Sanders, 27385.
...218 Ind. 4330 N.E.2d 713BOARD OF COM'RS OF VANDERBURGH COUNTYv.SANDERS.No. 27385.Supreme Court of Indiana.Dec. 31, Action by Ora Sanders against the Board of Commissioners of the County of Vanderburg for the recovery of building, erection, construction, and repair permit and inspection fees......