City of New Albany v. Endres

• Decision Date: 07 January 1896
• Docket Number: 17,623
• Citation: 42 N.E. 683,143 Ind. 192
• Parties: The City of New Albany et al. v. Endres
• Court: Indiana Supreme Court

42 N.E. 683

143 Ind. 192

The City of New Albany et al. v. Endres

No. 17,623

Supreme Court of Indiana

January 7, 1896

From the Floyd Circuit Court.

The judgment is reversed and cause remanded, with instructions to award a new trial.

G. H Hester, G. H. Voigt and E. B. Stotsenburg, for appellant.

A Dowling, for appellee.

OPINION

McCabe, J.

The appellee sued the appellants to enjoin them from widening a certain street in said city, which, it is alleged, the appellants, the city and its marshal, were threatening and about to do by extending the same over appellee's lot. The issues formed were submitted to and tried by the court without a jury, resulting in a special finding of the facts on which the court stated conclusions of law favorable to the appellee, upon which he had judgment perpetually enjoining appellants, as prayed for in the complaint.

The errors assigned here, among other things, call in question the conclusions of law. The determination of the question thus presented settles all the other errors assigned.

The material facts found are that on April 11, 1883, one Andros Huncilman became the owner in fee simple and possessed of the real estate described in plaintiff's complaint, and so held the same until December 2, 1890, when he sold and conveyed it to the plaintiff, who is now, and has ever since been, in possession thereof, and that Andros Huncilman's grantors had title to, and possession of, said property; that Poplar street in said city, being thirty feet wide, runs east and west along the south side of said real estate; that on July 21, 1890, the common council of said city, having under consideration a petition to widen said street between upper Eleventh and Thirteenth streets to the width of sixty feet, referred said petition to its committee on streets and alleys; that thereafter such action was taken by said common council as caused the city commissioners to meet at various times, who viewed said property and the adjoining property, reported for appropriation the south thirty feet thereof, and fixed the value of the same at $ 500.00 and assessed damages and benefits upon their final report on December 15, 1890, the said common council approved the same, and attempted to appropriate said south thirty feet; that the records of the proceedings of said common council in relation to the widening of said street fail to show the vote taken, or yeas and nays on any resolution, motion or action of said council in relation to said matter until March 20, 1893, when by nunc pro tunc entry the resolution calling out the city commissioners was corrected, so as to show the vote thereon, and by nunc pro tunc entry the resolution adopting the final report of the commissioners was corrected by setting out the vote thereon; that the damages have been duly assessed by said city commissioners on account of said appropriation, but the same have not been tendered to the plaintiff; that neither the plaintiff nor his grantors have at any time granted to the said city any license or permission to use or appropriate any part of said real estate for a public street or highway, and no part thereof has at any time been dedicated to the public use as a street or highway; that the defendants have threatened to enter upon the south thirty feet of said real estate, and have given notice that they and the said defendant, William C. Myers, the marshal of said city, would enter thereon, and were about to do so, and remove the fences therefrom, appropriate and throw open the same as a public highway, the whole of said real estate being of the value of twelve hundred dollars.

The conclusions of law, or that which the court stated for conclusions of law, are three in number. The first is nothing but a statement of fact and need not be further noticed.

The second is as follows: "That the proceedings and all the acts of the common council of the city of New Albany in relation to the widening of Poplar street, between upper Eleventh and Thirteenth streets, prior and up to March 30, 1893, were not evidence against anyone; that on said day, by nunc pro tunc entries, ordered by said common council, they became evidence, regular and valid, except against intervening rights of third persons, and the plaintiff having become the owner in fee simple of the property described in his complaint, on the 2d day of December, 1890, his rights are not affected by said nunc pro tunc entries."

This conclusion of law proceeds upon the idea that the appellee had become the owner of the lot in question at some period of time after the common council had taken such action as caused the city commissioners to meet, view, report for appropriation, and assess damages, etc., and the making of the nunc pro tunc entry in the record of the common council showing the two-thirds vote in favor of such action. Section 3630, R. S. 1894 (section 3167, R. S. 1881), provides that "If the common council shall determine, by a two-thirds vote, to submit the said matter to the commissioners, it shall be so ordered, * * but no such matter shall be submitted unless so ordered by a two-thirds vote of such common council."

But the fact is not stated in the finding when such action was taken by such common council. The finding shows that the petition to widen the street was pending before the common council on the 21st day of July, 1890, and that the lot was conveyed to the appellee on December 2, 1890, thereafter. The final report of such commissioners is shown to have been filed on December 15, 1890, on which day it is found the common council approved it, and attempted to appropriate the said south thirty feet of appellee's lot. That was nearly two weeks after he had become the owner. Therefore, for aught that appears in the special finding, the appellee may have been the owner of the lot when the two-thirds vote of the common council was taken in favor of submitting the matter to the city commissioners, and which was afterwards shown by the nunc pro tunc entry. If that be so, then he had no intervening rights, and was in no better attitude than if he had owned the property when the proceedings were begun. If the fact that appellee was an intervening purchaser between the two events mentioned, relieves him from the binding force of the action of the common council in making the nunc pro tunc entry, the burden rests on him of showing that fact. Therefore, the failure to find that fact was equivalent to a finding against him as to such fact. Town of Fowler v. Linquist, 138 Ind. 566, 37 N.E. 133; Manor v. Board, etc., 137 Ind. 367, 34 N.E. 959, and authorities there cited on page 390; Dodge v. Pope, 93 Ind. 480; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526, 4 N.E. 34.

The finding does show that he purchased after the proceedings were instituted. But it does not show when the two-thirds vote was taken. If it did, we could tell whether appellee was an intervening purchaser, because the finding shows that he purchased the lot December 2, 1890. But if the finding even showed that the two-thirds vote was taken before he purchased the lot, and the nunc pro tunc entry was not made until after his purchase, still the conclusion was wrong because the nunc pro tunc entry was binding on him. He does not complain that he had no notice; there is no finding that he had no notice. The theory of the complaint and the appellee is that for want of such a record as the statute requires, the whole proceeding was void. In Leonard v. Broughton, 120 Ind. 536, pages 544-5, 22 N.E. 731, quoting from Freeman on Judgments, it is said: "'The entry of judgments or decrees nunc pro tunc, is intended to be in furtherance of justice. It will not be ordered so as to affect third persons, who have acquired rights without notice of the rendition of any judgment. Generally, such conditions will be imposed as may seem necessary to save the interest of third parties, who have acted bona fide, and without notice; but if such conditions are not expressed in the order of the court, they are, nevertheless, to be considered, as made a part of it by force of the law. * * And in section 67, he says: With the exception pointed out in the above section, a judgment entered nunc pro tunc must be every where received and enforced, in the same manner, and to the same extent as though entered at the proper time. Though an execution may have issued, and proceedings under it culminated by the sale of property, when there was nothing on the record to support it, yet the omission was one of evidence and not fact, and the evidence being supplied in a proper manner, full force and effect will be given to the fact as if the evidence had existed from the beginning.'" To the same effect are Reilley v. Burton, 71 Ind. 118; Anderson, Admx., v. Mitchell, 58 Ind. 592; Bush v. Bush, 46 Ind. 70. Amendment of records by nunc pro tunc entry relate to the time when the proceedings actually took place. Bush v. Bush, supra; Leonard v. Broughton, supra. The same principle applies to the correction of records by nunc pro tunc entry by municipal corporations. Chamberlain v. City of Evansville, 77 Ind. 542; City of Logansport v. Crockett, 64 Ind. 319.

A very different question would be presented if the finding showed that the record of the common council disclosed that the vote by which the matter was submitted to the city commissioners was by less than two-thirds in favor thereof and that thereafter and before any...