City of Angola v. Hulbert

• Citation: 162 N.E.2d 324,130 Ind.App. 97
• Decision Date: 13 November 1959
• Docket Number: No. 19092,No. 1,19092,1
• Parties: CITY OF ANGOLA, Indiana, Appellant, v. Charles HULBERT and Esther Hulbert, Appellees
• Court: Court of Appeals of Indiana

Page 324

162 N.E.2d 324

130 Ind.App. 97

CITY OF ANGOLA, Indiana, Appellant, v. Charles HULBERT and Esther Hulbert, Appellees.

No. 19092.

Appellate Court of Indiana, Division No. 1.

Nov. 13, 1959.

Trennepohl, Berger & Shoup, Angola, for appellant.

Gerald Deller, Angola, for appellees.

AX, Judge.

The City of Angola, Indiana, appellant, brought an action in the Steuben Circuit Court to compel the appellees to remove a sign and to enjoin them perpetually from erecting any advertising sign between the curb and sidewalk or closer than ten feet from the curb line of a highway adjacent to the premises of appellees in said City of Angola.

This action was brought under the following statute:

Burns' Ind.Stat. 1959 Cum.Supp. § 47-1908---- (c) 'No person shall place, maintain or display any advertising sign, signal or device on any highway in cities between the curb and sidewalk and, in case curb and sidewalk join, no person shall place, maintain or display on the sidewalk any advertising sign, signal or device closer than ten feet from the curb line, and overhanging signs shall not overhang the curb. * * *

(f) 'Every such prohibited sign, signal or marking is hereby declared to be a public nuisance and the authority having jurisdiction over the highway is hereby empowered to remove the same or cause it to be removed without notice.'

Issues were formed by appellant's amended complaint which alleged that appellees are the owners of a certain tract of real estate in the city of Angola, Indiana; that appellees operate thereon a gasoline filling station in connection with which they maintain upon the said premises an advertising sign between the curb and the sidewalk and closer than ten feet from the curb line of the highway, and that these facts constitute a public nuisance. The appellees filed a verified answer of denial to these allegations. Trial was had by the court with judgment against appellant, the judgment of said court further stating therein: 'that the law is with the defendants (appellees) herein.'

Appellant's motion for new trial was overruled and this appeal followed with the following specific assigned errors:

(1) 'The Court erred in overruling appellant's motion for a new trial.

(2) 'The court erred in striking parts of appellant's complaint on appellees' motion to require pleading of facts and to make complaint more specific.

(3) 'The court erred in sustaining appellees' demurrer to appellant's complaint.

(4) 'The court erred in overruling appellant's motion for judgment on the pleadings.

(5) 'The court erred in its findings and judgment for appellees at conclusion of appellant's evidence and after overruling appellees' motion for a directed finding.'

Appellant's assignments of errors numbers 2 and 3 above present no question for this court to review. Appellant filed an amended complaint after the court sustained appellees' motion to require pleading of facts and to make the complaint more specific, and after the court had sustained appellees' demurrer to appellant's original complaint. By amending its complaint, the appellant is therefore precluded from bringing matters appearing in the original complaint before this court for review. A motion to amend takes out the original complaint and leaves no question for review upon the original pleadings. Kimble v. Jolly, 1940, 217 Ind. 698, 700, 30 N.E.2d 463.

By assignment of error number 4, appellant claims that the court erred in overruling its motion for judgment on the pleadings. The record before us indicates that this motion was made after appellees had filed answer to the amended complaint in which answer there was a denial of part of the material allegations in rhetorical paragraph number 2 and all of the allegations of rhetorical paragraph number 3 of appellant's amended complaint. In the case of Board of Com'rs of Lake County v. State, ex rel., 1913, 179 Ind. 644, 102 N.E. 97, 98, there was a general denial filed to the allegations of the complaint. The court held: 'A judgment on the pleadings cannot be entered where there is an issue of fact framed thereby.' See cases cited. This case was quoted by this court in Becker v. Indiana National Bank of Indianapolis, 1958, 128 Ind.App. 678, 149 N.E.2d 832. Consequently, this asserted error by appellant is without merit.

Assignment of error number 5 presents no question for review by this court. It was an alleged specific error of law occurring in the course of the trial and should have been called to the attention of the court below as one of the grounds in the motion for new trial. Since it was not included therein, it is not a proper independent assignment of error. Mendenhall v. Lay, 1953, 123 Ind.App. 486, 111 N.E.2d 662.

Having disposed of the above assignments of error, there remains for our consideration only that the court erred in overruling appellant's motion for a new trial.

Only one of the specifications in the motion for new trial presents any question, namely, that the finding and decision of the court is contrary to law. Since the finding was negative to the appellant, which had the burden of proof, it cannot challenge the insufficiency of the evidence to sustain the finding. Hinds v. McNair, 1955, 235 Ind. 34, 41, 129 N.E.2d 553; Leckrone v. Lawler, 1954, 125 Ind.App. 35, 37, 118 N.E.2d 381; Mendenhall v. Lay, supra. However, a negative finding may be attacked under the specification that the finding is contrary to law, and thus is presented the question whether they were entitled, under the evidence to relief which was denied them by the finding. Leckrone v. Lawler, supra; Wilson v. Rollings, 1938, 214 Ind. 155, 158, 14 N.E.2d 905.

If the undisputed evidence entitles the one who has the burden of proof to a decision which has been denied him, such decision is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.

'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.' Pokraka v. Lummus Co., 1952, 230 Ind. 523, 532, 104 N.E.2d 669, 673.

This case is an equitable proceeding in which the appellant sought but was denied an injunction. It is well established that in an equitable proceeding, the finding of the court will not be disturbed, under a charge that the finding or decision is contrary to law, unless clearly erroneous, McConnell v. Huntington, 1886, 108 Ind. 405, 8 N.E. 620; Miller v. Evansville National Bank, 1884, 99 Ind. 272; State ex rel. Heiney v. Wasson, 1885, 99 Ind. 261; Calkins v. Evans, 1854, 5 Ind. 441, or unless there is manifest error. Belk v. Fossler, 1911, (T.D.1912), 49 Ind.App. 248, 96 N.E. 15. Nor will the findings be disturbed unless the evidence is so strong that a reasonable person could reach only an opposite conclusion to that of the trial court.

The only evidence in this case at bar was presented by the appellant. The evidence most favorable to appellees, which we can the owners of both the sign in question and the adjacent premises which were used as a filling station; that the pole on the top of which the sign was attached was located on the property when it was purchased by the appellees; that appellees had later put the pole back up and affixed a sign onto the top of it; that the base of the pole to which the sign was affixed was less than ten feet from the curb line; that the bottom of the sign attached to the top...