City of Gary v. Yaksich, 18016

• Decision Date: 27 February 1950
• Docket Number: No. 18016,18016
• Citation: 90 N.E.2d 509,120 Ind.App. 121
• Parties: CITY OF GARY v. YAKSICH.
• Court: Indiana Appellate Court

Page 509

90 N.E.2d 509

120 Ind.App. 121

CITY OF GARY v. YAKSICH.

No. 18016.

Appellate Court of Indiana, in Banc.

Feb. 27, 1950.

Samuel S. Dubin, Gary, for appellant.

Metro M. Holovachka, Gary, for appellee.

WILTROUT, Judge.

The Police Civil Service Commission of the City of Gary, after trial, found the appellee guilty of conduct unbecoming an officer and of soliciting a bribe, and dismissed him from the police department.

The appellee thereupon instituted this action to review the action of the civil service commission under the provisions of § 48-6105, Burns' 1933, 1949 Cum.Supp.

Thereafter, the commission filed in court a transcript entitled 'Transcript of proceedings had before the Police Civil Service Commission of the City of Gary, Indiana, on the 9th day of December, 1948.' In the body of this transcript reference is made to an appearance of appellee before the commission at its meeting of December 1, 1948, although the transcript does not include any minutes of the latter meeting.

A pre-trial conference was had, and an order book entry made, reading, in part, as follows: 'Come now the parties by counsel. Pre-trial conference had and concluded and it is now agreed by and between the parties that the attorneys for the plaintiff and defendant are to submit briefs to the court upon the proposition of whether or not the proper legal steps were taken by the commission prior to entering upon a trial of the plaintiff. In the event the court finds that the proper legal steps were not taken by the commission, then the court shall enter an order according to law. In the event the court shall find that the proper legal steps were taken, then a determination should be had as to whether or not, from the examination of the transcript the commission acted 'capriciously with bias and prejudice or said ruling was arbitrary or unreasonable.''

On June 18, 1949, the following order book entry was made:

'The court having had this matter under advisement, by agreement of the parties, the court now finds for the plaintiff on proposition No. 1 of the agreement to the effect that 'In the event the court finds that the proper legal steps were not taken by the commission then the court shall enter an order according to law', and finds that there is no evidence in the transcript that plaintiff was dismissed, suspended or punished 'Upon charges filed.'

'The parties are given five days in which to submit a proper form of order for entry herein.'

A form of order was presented to the court, and the court set the cause for formal hearing for June 23, 1949. On that date, the appellant filed its motion alleging that the transcript theretofore filed by the commission is not complete in that it does not show the proceedings had before the commission on December 1, 1948, and does not contain miscellaneous original documents in connection with said matter; that said documents and record of proceedings are a necessary part of the record in this cause; and asking the court for leave to file said transcript and documents. This motion was overruled.

The order book entry then reads as follows:

'Come now the parties by counsel, and this cause being at issue is submitted to the court for trial without intervention of a jury, and the court having studied the transcript of the hearing before the Civil Service Commission of the Gary Police Department filed herein pursuant to the statute and after hearing the argument of counsel and being duly advised in the premises, finds for the plaintiff, and that the allegations of plaintiff's complaint are true.

'Court further finds that the transcript of proceedings had before the Police Civil Service Commission had been filed in compliance with the statute, and after the examination of the transcript, pleadings and hearing of the argument by counsel, court finds that there is no evidence in the transcript that the plaintiff was dismissed, suspended or punished 'Upon Charges Filed'.

'The court further finds that at no time were there any charges filed before the Police Civil Service Commission against the plaintiff in this cause charging him with the violation of any rules or regulations of said commission as prescribed and required by statute.

'The court further finds that the finding of the Police Civil Service Commission be reversed and that said plaintiff be reinstated to his position as a patrolman of the Police Department of the City of Gary as of the date of...