Custard v. City of South Bend, 3-1080A333

• Decision Date: 27 July 1981
• Docket Number: No. 3-1080A333,3-1080A333
• Citation: 423 N.E.2d 712
• Parties: Worden CUSTARD et al., Remonstrators-Appellants, v. CITY OF SOUTH BEND, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 712

423 N.E.2d 712

Worden CUSTARD et al., Remonstrators-Appellants, v. CITY OF SOUTH BEND, Defendant-Appellee.

No. 3-1080A333.

Court of Appeals of Indiana, Third District.

July 27, 1981.

Don G. Blackmond, South Bend, for remonstrators-appellants.

Richard L. Hill, City Atty., Robert M. Parker, Chief Deputy City Atty., South Bend, for defendant-appellee.

HOFFMAN, Presiding Judge.

This case arises from the passage of an annexation ordinance by the City of South Bend. In this particular appeal, Fred N. Davis, one of the original remonstrators, raises the following issues:

(1) whether the trial court erred in conducting a hearing on the sufficiency of the remonstrance when Davis had not received notice of the hearing and was not represented by counsel;

(2) whether the trial court erred in conducting a hearing on the sufficiency of the remonstrance over objection of the remonstrators and in overruling the remonstrators' motions for a continuance;

(3) whether the trial court erred in overruling Davis's objection to a hearing on the sufficiency of the remonstrance and his petition to stay all proceedings; and

(4) whether the evidence is sufficient to sustain the trial court's dismissal of the remonstrance.

On August 24, 1971 twenty-nine remonstrators filed a remonstrance and appeal from a general annexation ordinance enacted by the City of South Bend. The remonstrators were represented by attorney Joseph Roper until his withdrawal on December 16, 1975. On December 15, 1975 attorney Daniel Manion entered his appearance on behalf of all the remonstrators. Manion withdrew his appearance on April 25, 1980 upon the representation of attorney Sanford Brook that he represented the remonstrators.

On April 29, 1980 Brook filed a request of certain remonstrators to withdraw from the case. Also on April 29, 1980 James Groves entered his appearance on behalf of certain remonstrators who had not joined in the petition to withdraw. It became apparent at this time that two or three of the remonstrators, including Davis, were not actually represented by counsel. Nevertheless, the court heard evidence regarding the request to withdraw on April 29 and 30, 1980. At the close of the evidence the trial court granted the parties an opportunity to file written briefs.

On May 7, 1980 Davis filed a written objection to the hearing held on April 29 and 30 and petitioned the court for a hearing and a stay of all proceedings. Davis's petition alleged that he had received no notice that Manion had withdrawn his appearance nor had Davis authorized Groves or Brook to represent him. Additionally, Davis alleged that he had not been notified of the hearing on April 29 and 30.

On May 9, 1980 the trial court overruled Davis's objection and motions for hearing and stay of the proceedings. On the same date, the trial court granted the petition to withdraw, found the remonstrance insufficient and dismissed the remonstrance and appeal.

The crux of this controversy concerns IC 1971, 18-5-10-24 (Burns Code Ed.). The statute provides:

"Remonstrance against annexation Procedure for filing. Whenever territory is annexed to a city, whether by general ordinance defining the city boundaries or by special ordinance for the purpose of annexing territory, an appeal may be taken from the annexation by either a majority of the owners of land in the territory or by the owners of more than seventy-five per cent (75%) in assessed valuation of the real estate in the territory, if they deem themselves aggrieved or injuriously affected, by filing their remonstrances in writing against the annexation, together with a copy of the ordinance, in the circuit or superior courts of the county where the territory is situated or with the judge thereof in vacation within sixty (60) days after the last publication provided for in section 402 (18-5-10-20) of this article. The written remonstrance or complaint shall state the reason why annexation should not in justice take place.

"Upon receipt of the remonstrance, the court or the judge thereof in vacation shall determine whether it bears the necessary signatures and complies with the requirements of sections 406 through 408 (18-5-10-24 18-5-10-26) of this article. In determining the total number of landowners of the area and whether or not signers of the remonstrance are landowners the names as they appear upon the tax duplicate shall be prima facie evidence of ownership. In ascertaining the number of landowners of the area and for the purpose of determining the sufficiency of the remonstrance as to the number of landowners required to constitute a majority, not more than one (1) person having an interest in a single property, as evidenced by the tax duplicate, shall be considered a landowner.

"Upon the determination of the judge of the court that the remonstrance is sufficient he shall fix a time for a hearing on the remonstrance which shall be held not later than sixty (60) days thereafter. Notice of the proceedings by way of summons shall be served upon the proper officers of the city seeking to make annexation, and the city shall become defendant in such cause, and shall be required to appear and answer as in other cases."

Davis contends that this statute mandates a hearing on the sufficiency of the remonstrance which complies with due process requirements. The City on the other hand argues that it is within the province of the judge to determine the sufficiency of a remonstrance without conducting a hearing. According to the City, a hearing is necessary only after a judicial determination that the remonstrance is sufficient.

In construing a statute, the proper objective of a court is to ascertain and effectuate the intent of the Legislature as shown by the whole act, the law existing before its passage, changes made and the apparent motive for making them. Froberg v. Northern Indiana Const., Inc. (1981), Ind.App., 416 N.E.2d 451. The prior statute regarding the sufficiency of a remonstrance, Acts 1935, ch. 153 § 1, provided for a court hearing to determine if a sufficient percentage of property owners joined in the remonstrance. This procedure was changed in 1955 to the present form which does not specifically require a hearing until after a judicial determination that the remonstrance is sufficient. The deletion of the hearing requirement before a sufficiency determination is made is in harmony with the principle recognized by this Court "that the context of the statutes regulating annexation contemplates proceeding at an accelerated pace to the extent that good practice would dictate expeditious handling." Bata Shoe Co., Inc. et al. v. City of Salem et al. (1972), 153 Ind.App. 323, at 326, 287 N.E.2d 350, at 352. It is apparent by the nature of the annexation statutes and the amendments of the statutes that the Legislature intended to eliminate the necessity for a hearing prior to a determination of the sufficiency of a remonstrance.

Davis refers this Court to cases in which a hearing on the sufficiency of a remonstrance was conducted by the trial court. The fact that some trial courts have found it helpful to conduct a hearing prior to making its determination on the sufficiency of the remonstrance does not make such a hearing a requirement in all cases. On the contrary, the language utilized in other cases indicates tht a hearing is not required. In In re Annex., etc., et al. v. Minne et al. (1965), 138 Ind.App. 207, at 212, 212 N.E.2d 393, at 396 this Court stated:

"Under the provisions of the section quoted (18-5-10-24), the trial...