Brendanwood Neighborhood Ass'n, Inc. v. Common Council of City of Lebanon, No. 1--475A66

Docket NºNo. 1--475A66
Citation338 N.E.2d 695, 167 Ind.App. 253
Case DateDecember 16, 1975

Page 695

338 N.E.2d 695
167 Ind.App. 253
The BRENDANWOOD NEIGHBORHOOD ASSOCIATION, INC., (Plaintiff below),
and
Dan Wheat and Carolyn K. Wheat, husband and wife, Appellants,
v.
The COMMON COUNCIL OF the CITY OF LEBANON, Indiana, et al.,
Appellees(Defendants below).
No. 1--475A66.
Court of Appeals of Indiana, First District.
Dec. 16, 1975.
Rehearing Denied Jan. 19, 1976.

[167 Ind.App. 254] Hollingsworth Martin & Buchanan, Buchanan & Buchanan, Lebanon, for appellants.

James L. Goodwin, Lebanon, William F. LeMond, Indianapolis, Wendell B. Iddings, Lebanon, for appellees.

LYBROOK, Judge.

Plaintiff-appellant The Brendanwood Neighborhood Association (BNA) and appellants Dan and Carolyn Wheat, husband and wife, appeal from the dismissal of BNA's complaint and from the subsequent refusal of the trial court to permit amendment to the complaint naming the Wheats as parties plaintiff. The propriety of that refusal forms the primary issue on appeal.

The record reveals that on May 1, 1974, BNA filed a complaint in the Boone Circuit Court challenging the validity of an annexation ordinance and a resolution amending the ordinance. The complaint sought to abate a nuisance and declaratory judgment. Thereafter, defendants-appellees The Common Council of the City of Lebanon, Robert Hulse, Robert Walker, and Hulse and Walker d/b/a H&W Development Co., a general partnership, responded by filing

Page 696

motions to dismiss BNA's action. Defendants' motions were sustained on October 16, 1974.

On October 25, 1974, BNA and the Wheats jointly moved the court for leave to amend the complaint to add the Wheats as parties plaintiff. The motion was denied, and this appeal was initiated.

Preliminarily, we note that the grounds advanced by defendants in their motions to dismiss included (1) lack of subject matter jurisdiction and (2) failure to state a claim upon which relief could be granted. Since the order sustaining the motions to dismiss does not specify which of these grounds was the basis of dismissal, each must be considered.

[167 Ind.App. 255] Clearly, the Boone Circuit Court had subject matter jurisdiction herein. The question of subject matter jurisdiction concerns whether the court does or does not have jurisdiction of the general subject or the general class of cases to which the particular action belongs. See, McCoy v. Able (1891), 131 Ind. 417, 30 N.E. 528; State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 180 N.E. 596; Wabash Railroad Co. v. Public Service Commission (1953), 232 Ind. 277, 112 N.E.2d 292; Ind. Rules of Procedure, Trial Rule 12(B)(1). Herein, the subject matters of BNA's complaint were (1) suit to abate a nuisance and (2) suit for declaratory judgment. Both matters are clearly within the jurisdiction of the Boone Circuit Court. See, Article 7, Section 8 of the Constitution of Indiana, and IC 1971, 33--4--4--3 (Burns' Code Ed.).

Thus, it is apparent that the basis of the dismissal of plaintiff's complaint was failure to state a claim upon which relief could be granted pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6). In such cases, the complaint may be amended once, as a matter of right, within 10 days:

'When a motion to dismiss is sustained for failure to state a claim under subsection (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten (10) days after service of notice of the court's order sustaining...

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14 practice notes
  • Parker v. State, No. 3-777A172
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1980
    ...v. Noble Circuit Court (1975), 263 Ind. 353, 332 N.E.2d 99; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695. Here, there is nothing in the record whatsoever indicating that appellant ever attempted to file an amended complaint. As w......
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...by IC 34-4-10-1, the power to enter declaratory judgments. See Brendanwood Neighborhood Ass'n v. Common Council of Lebanon (1975), 167 Ind.App. 253, 255, 338 N.E.2d 695, 696 (citing IND. CONST. art. 7, Sec. 8; IND.CODE 33-4-4-3 (BURNS' CODE Ed.)). Consequently, the Johnson Circuit Court has......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. Page 1251 * The only......
  • Twyman v. State, No. 2-183A3
    • United States
    • Indiana Court of Appeals of Indiana
    • August 18, 1983
    ...belongs. Pund v. Pund, (1976) 171 Ind.App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind.App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred......
  • Request a trial to view additional results
14 cases
  • Parker v. State, No. 3-777A172
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1980
    ...v. Noble Circuit Court (1975), 263 Ind. 353, 332 N.E.2d 99; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695. Here, there is nothing in the record whatsoever indicating that appellant ever attempted to file an amended complaint. As w......
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...by IC 34-4-10-1, the power to enter declaratory judgments. See Brendanwood Neighborhood Ass'n v. Common Council of Lebanon (1975), 167 Ind.App. 253, 255, 338 N.E.2d 695, 696 (citing IND. CONST. art. 7, Sec. 8; IND.CODE 33-4-4-3 (BURNS' CODE Ed.)). Consequently, the Johnson Circuit Court has......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. Page 1251 * The only......
  • Twyman v. State, No. 2-183A3
    • United States
    • Indiana Court of Appeals of Indiana
    • August 18, 1983
    ...belongs. Pund v. Pund, (1976) 171 Ind.App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind.App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred......
  • Request a trial to view additional results

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