City of Indianapolis v. Pollard

• Decision Date: 03 October 1960
• Docket Number: 29933,Nos. 29932,s. 29932
• Citation: 241 Ind. 66,169 N.E.2d 405
• Parties: CITY OF INDIANAPOLIS, Indiana, a Municipal Corporation, Charles H. Boswell, Mayor of the City of Indianapolis, Teresa F. Laffey, City Clerk of the City of Indianapolis, Michael B. Reddington, Corporation Counsel of the City of Indianapolis, John J. Dillon, City Attorney of the City of Indianapolis, Appellants, v. Oscar H. POLLARD, Donald L. Milburn, Herschel Harrison, John W. Schoeneman, Guy M. Marshall, Cleveland, Cincinnati, Chicago and St. Louis Railway Company, a corporation, New York Central Railroad Company, a corporation (Lessee thereof), Cleveland Grain Company Division of General Grain, Inc., a corporation and Indiana Farm Bureau Co-Operative Association, Inc., Appellees. CITY OF INDIANAPOLIS, Indiana, a Municipal Corporation, Charles H. Boswell, Mayor of the City of Indianapolis, Teresa F. Laffey, City Clerk of the City of Indianapolis, Michael B. Reddington, Corporation Counsel of the City of Indianapolis, John J. Dillon, City Attorney of the City of Indianapolis, Appellants, v. PRODUCERS REALTY, INC., Indianapolis Produce Terminal, Inc., Ideal Equipment Co., Inc., Standard Steel Manufacturing Co., Inc., All Indiana corporations, Appellees.
• Court: Indiana Supreme Court

Page 405

169 N.E.2d 405

241 Ind. 66

CITY OF INDIANAPOLIS, Indiana, a Municipal Corporation,

Charles H. Boswell, Mayor of the City of Indianapolis,

Teresa F. Laffey, City Clerk of the City of Indianapolis,

Michael B. Reddington, Corporation Counsel of the City of

Indianapolis, John J. Dillon, City Attorney of the City of

Indianapolis, Appellants, v. Oscar H. POLLARD, Donald L. Milburn, Herschel Harrison, John

W. Schoeneman, Guy M. Marshall, Cleveland, Cincinnati,

Chicago and St. Louis Railway Company, a corporation, New

York Central Railroad Company, a corporation (Lessee

thereof), Cleveland Grain Company Division of General Grain,

Inc., a corporation and Indiana Farm Bureau Co-Operative

Association, Inc., Appellees.

CITY OF INDIANAPOLIS, Indiana, a Municipal Corporation,

Charles H. Boswell, Mayor of the City of Indianapolis,

Teresa F. Laffey, City Clerk of the City of Indianapolis,

Michael B. Reddington, Corporation Counsel of the City of

Indianapolis, John J. Dillon, City Attorney of the City of

Indianapolis, Appellants, v. PRODUCERS REALTY, INC., Indianapolis Produce Terminal, Inc.,

Ideal Equipment Co., Inc., Standard Steel

Manufacturing Co., Inc., All Indiana

corporations, Appellees.

Nos. 29932, 29933.

Supreme Court of Indiana.

Oct. 3, 1960.

Michael B. Reddington, John J. Dillon, Indianapolis, for appellants.

Karl J. Stipher, Paul W. Marrs, Duge Butler, Jr., John C. O'Connor, Indianapolis, for appellees.

Baker & Daniels, Ruckelshaus, O'Connor & Ruckelshaus, Indianapolis, of counsel.

ARTERBURN, Judge.

The two above entitled cases were consolidated for the purposes of briefing and consideration on appeal.

The appeals are from injunctions granted against the City of Indianapolis, enjoining it from annexing separate parcels of territory located in separate corners of Center Township in Marion County. These parcels were not contiguous with each other, but were each individually contiguous with the City of Indianapolis. In 1955 by Special Ordinance No. 26 the City of Indianapolis attempted to annex the three parcels (or corners of the townships) under one ordinance. Remonstrances were filed in the Marion Circuit Court pursuant to the statute. Burns' § 48-702, 1960 Cum.Supp. Upon a hearing the Marion Circuit Court found that the City was not entitled to annex in one ordinance the three separate tracts of territory which were not contiguous with each other. Shortly after this adverse decision the City then enacted Special Ordinances Nos. 22, 23 and 24, 1959, for the purpose of annexing the same three parcels which had been included in the original Special Ordinance No. 26, 1955. The appellees thereupon filed the two injunction cases against the City in the Marion Circuit Court to enjoin the City from completing steps to enforce such ordinances numbered 22 and 24. ¹

The Marion Circuit Court upon trial entered a judgment granting an injunction against the City in each of the cases, enjoining it from taking any further action in such annexation matter for a period of two years. Burns' § 48-702, 1960 Cum.Supp. This appeal is taken from those two judgments.

The appellants claim error upon the overruling of the motion for a new trial. The first proposition relied upon by the appellants is Item 8 in the motion for a new trial which reads as follows:

'8. The Court erred in sustaining on cross examination and in defendant's case in chief objections to defendants' proffered questions which, in substance, offered to show that annexation remonstrators were never considered or counted or determined, and to show that the determinants as to the merits of annexation were never entered in evidence, thereby excluding evidence which the Court should have considered, such questions in substance being what did the record show with reference to the total number of remonstrators, and what did the record show with reference to the statutory determinants on the merits in the previous case where Special Judge Royse presided (to which after plaintiffs' objections were sustained in all cases, the defendants offered to prove that there were insufficient remonstrators and that the statutory determinants on the merits were never decided but only the question of the validity of the ordinance.)'

Appellants in the argument portion of their brief condensed this point as follows:

'8. The Court erred in excluding all evidence offered by the Appellant offering to show really what was adjudicated in the Bowser case, and in sustaining objections to all and every question of Appellant which sought to educe what did take place and just what was decided in the Bowser case.'

The assignment in the motion for a new trial is insufficient for the reason that no question and answer with objections thereto nor an offer to prove, are set forth with the court's ruling thereon for us to give this specification adequate consideration. We should not be compelled to search the record to find the particular ruling to which objection was made. Kimmick v. Linn, 1940, 217 Ind. 485, 29 N.E.2d 207; Sertel v. Graeter, 1887, 112 Ind. 117, 13 N.E. 415; Discher et al. v. Klapp et al., 1954, 124 Ind.App. 563, 117 N.E.2d 753; Reese et al. v. Caffee et al., 1892, 133 Ind. 14, 32 N.E. 720.

We point out, however, that the finding and judgment in the 'Bowser case' is in the record brought before us.

Appellant's second proposition is that the evidence is not sufficient to sustain the decision of the court and that the finding and decision are contrary to law.

The appellants argue under this point that the City should not be restrained for a period of two years, as provided under Burns' § 48-702, for the reason that there was no determination in the first and original hearing on the remonstrances in the annexation proceeding (Bowser case) on the merits. The appellants contend that the decision in favor of the remonstrators in the trial court was merely a technical victory because the City erroneously attempted to include in one ordinance three separate tracts of land not contiguous with each other. It is admitted, however, that if there had been a hearing on the merits, the pertinent statute barring further annexation proceedings for a period of two years would have been applicable.

An examination of the statute reveals that upon the filing of a remonstrance against annexation, the judge shall proceed to hear same:

'If the judge of the court shall find that the primary determinants enumerated above apply to the annexation, it shall take place notwithstanding the remonstrance and notwithstanding, further, the provisions of any other statute of this state. If, however, the presence of these primary determinants cannot be demonstrated...