City of New Haven v. Indiana Suburban Sewers, Inc.

• Decision Date: 17 January 1972
• Docket Number: No. 172S7,172S7
• Citation: 257 Ind. 609,277 N.E.2d 361
• Parties: CITY OF NEW HAVEN, Appellant, v. INDIANA SUBURBAN SEWERS, INC., et al., Appellees.
• Court: Indiana Supreme Court

Page 361

277 N.E.2d 361

257 Ind. 609

CITY OF NEW HAVEN, Appellant, v. INDIANA SUBURBAN SEWERS, INC., et al., Appellees.

No. 172S7.

Supreme Court of Indiana.

Jan. 17, 1972.

William M. Evans, Bose, Buchanan, McKinney & Evans, Indianapolis, Arthur H. Fruectenicht, Fort Wayne, for appellant; Bose, Buchanan, McKinney & Evans, Indianapolis, of counsel.

Matthew E. Welsh, William M. Osborn, Claude Spilman, Jr., Bingham, Summers, Welsh & Spilman, Frederick J. Frosch, Arthur H. Gemmer, Gemmer & Frosch, Indianapolis, for Indiana Suburban Sewers, Inc.

James R. Arnold, City Atty., Robert E. Meyers, Associate City Atty., Fort Wayne, for City of Fort Wayne and Bd. of Public Works; Bingham, Summers, Welsh & Spilman, Gemmer & Frosch, Indianapolis, of counsel.

PRENTICE, Judge.

This cause is before us on Appellees' Petition to Transfer, the review having been previously determined in favor of the appellant by the Appellate Court which vacated the order of the Public Service Commission of Indiana. The opinion of the Appellate Court as reported at Ind.App., 261 N.E.2d 240, sets forth the relevant facts and articulately analyzes the statutory requirement and case law relative to the requirement of notice, as it relates to a rehearing held by the Commission. Very briefly stated, the review is from an order of the Commission, granted upon rehearing, and awarding the appellee, Indiana Suburban Sewers, Inc., a certificate of territorial authority to render sewage disposal service in a rural area between the City of Fort Wayne and the City of New Haven, Indiana. The Commission had previously, on July 14, 1967, denied the certificate, after hearing following proper notice. In response to Appellees' motion filed July 20, 1967 asking a rehearing and leave to file an additional exhibit, the Commission, on July 28, 1967, granted the petition, held the rehearing on August 7 and 11, 1967 and, on September 1, 1967, reversed its July 14th order and awarded the certificate.

Appellees' Petition for Transfer assigns nineteen separate grounds, but our concern is with the question of waiver of notice presented as number 9 thereof. It is Appellant's position that it was incumbent upon the Commission to issue the same formal statutory notice with respect to the rehearing as was required and issued with respect to the original hearing. Appellant's arguments are persuasive, as witnessed by their adoption by the Appellate Court. However, we do not meet that question, in view of Appellant's having attended and participated in the rehearing. Appellant has admitted that it had actual notice of the rehearing and participated therein. It appeared by counsel, made motions and objections, cross-examined witnesses, introduced testimony and offered documentary exhibits. There is nothing to indicate that Appellant objected to an irregularity of notice prior to participating in the hearing or that it participated under protest. It did urge the notice question as a ground for further rehearing, but we think this not significant.

'It is well settled that where there is an appearance without objection, or, indeed, where there is any act indicating consent, want of notice will be deemed waived.' Cleveland v. Obenchain (1886), 107 Ind. 591, 594, 8 N.E. 624, 625.

The foregoing was quoted by the Appellate Court in Wabash Smelting, Inc. v. Murphy (1962), 134 Ind.App. 198, 186 N.E.2d 586; and in holding that notice had been waived, the court observed:

'We believe that the crux of the matter is that appellant waived all such notices by having its attorney attend the hearing, enter a general appearance, stipulate certain facts without objection, examine and cross-examine witnesses, make...