City of Indianapolis v. Wynn
| Decision Date | 16 June 1959 |
| Docket Number | No. 29724,29724 |
| Citation | 159 N.E.2d 572,239 Ind. 567 |
| Parties | CITY OF INDIANAPOLIS, a Municipal Corporation, Appellant, v. Earl J. WYNN et al., Petitioners and Remonstrators, Against the Annexation of the Town of Woodruff Place, Indiana, Appellees. |
| Court | Indiana Supreme Court |
Michael B. Reddington, Corp. Counsel, John J. Dillon, City Atty., Marion W. Bell, Asst. City Atty., Indianapolis, for appellant.
Lewis E. Marine, L Russell Newgent, Indianapolis, for appellees.
Michael L. Fansler, Gustav H. Dongus, Indianapolis (Fansler, Fauvre, Dongus & chambers, Indisnapolis, of counsel), amici curiae.
On Petition for Rehearing.
Michael L. Fansler, a distinguished former member of this court, and Gustav H. Dongus, both members of the Indianapolis Bar, have filed a brief as amici curiae on rehearing in which they assert that both the 1955 Act, 1 and the 1948 Act 2 are unconstitutional insofar as they attempt to vest the trial court with jurisdiction to determine whether the annexation is in the best interests of the city.
amicus curiae must accept a case as he finds it. 3 C.J.S. Amicus Curiae & 3(c), p. 1049.
The question which amici curiae seek to present there was not raised by either the appellees or the appellant; therefore, no question is presented which this court can properly consider. Indiana State Board of Medical Registration and Examination v. Seulean, 1942, 219 Ind. 321, 328, 37 N.E.2d 935.
It has been uniformly held in Indiana that a constitutional question will not be considered on appeal unless it was presented in the trial court. Jones, et ux. v. Stawicki, et ux., 1953, 233 Ind. 272, 274, 111 N.E.2d 718.
Appellees, in a supplemental brief on rehearing, attempt, for the first time, to raise the question of the omission of necessary parties as appellees. This question was not briefed or urged in appellees' brief on appeal, and it cannot be raised for the first time on petition for rehearing. Armstrong v. Hufty, 1901, 156 Ind. 606, 630, 631, 55 N.E. 443, 60 N.E. 1080; Pittsburgh, etc., R. Co. v. Lightheiser, 1907, 168 Ind. 438, 467, 78 N.E. 1033.
Even if this question had been properly presented, this court has recently held in King et al. v. City of Bloomington, Ind. 1959, 159 N.E.2d 563, that:
'If there was any defect in the parties named in the complaint in the court below, it should have been properly raised there. * * *
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'* * * it is too late here [on appeal] for the appellee to raise any question as to a defect or failure to properly name parties in the assignment of errors, which could have been called to the attention of the parties in the trial court below, as revealed by the complaint filed therein.'
Appellees' petition for rehearing presents nothing which was not carefully considered in the original opinion and no cause for granting...
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