Davidson v. Grosskopf, 18893
| Decision Date | 29 May 1958 |
| Docket Number | No. 18893,18893 |
| Citation | 128 Ind.App. 612,150 N.E.2d 685 |
| Parties | Fred DAVIDSON, Herbert Davidson, and Samuel J. Kagan, Appellants, v. Rudolph F. GROSSKOPF, Helen Grosskopf, Richard C. Kiger, Betty Jean Kiger, Paul Johnson, Julia Johnson, Louis A. Bumb, Betty Lee Bumb, Arthur R. Hood, Adeline Hood, W. H. Nicholas, Jack Nicholas, Stephen C. Hadley, Mary K. Hadley, Glenn W. Jones, Phyllis Jones, Pershing Meyers, Betty C. Meyers, Ralph O. Knauss, Jean Knauss, W. Paul Roush, Audrey Ruth Roush, George R. Gilbert, Maribel Gilbert, George B. Johnson, Betty Johnson, and Marion County Plan Commission, and R. Ray Fisher, as Marion County Building Commissioner, Appellees. |
| Court | Indiana Appellate Court |
Steers, Klee, Jay & Sullivan, Indianapolis, for appellants.
Robert S. Smith, Bredell, Cooper & Martin, Indianapolis, for appellees.
Appellants filed a verified petition to intervene in the court below in an action wherein all of the appellees, Rudolph F. Grosskoph, and others, were plaintiffs and the Marion County Plan Commission and R. Ray Fisher, as Building Commissioner, were defendants. In such action the appellees asked for a restraining order, temporary injunction, and an injunction against the proposed use of certain real estate and alleged that the action of the Marion County Board of Commissioners in purporting to amend the Marion County Master Plan Permanent Zoning Ordinance with reference to such real estate was arbitrary, capricious and unreasonable and constituted spot zoning in the selection of real property of one owner for special and preferred treatment, and asked that the Marion County Plan Commission and the Marion County Building Commissioner be enjoined from issuing a location improvement permit or other form of building permit. The petition to intervene on the part of the appellants alleged that the appellants, Fred Davidson and Herbert Davidson, were the owners of certain real estate located generally at the Northeast intersection of Roads 100 and 431; that prior to the time in question such real estate had been zoned as a R-1 or residential district; that the appellants filed a petition with the Marion County Plan Commission asking such Commission to recommend to the Board of Commissioners of Marion County that the zoning ordinance classifying such area as residential should be amended from a residential district to a business district; that after due notice such Plan Commission by resolution recommended that the real estate in question be rezoned and that said area be changed from a residential district to a business district, and that following the adoption of such resolution the Board of Commissioners by resolution and ordinance amended said Master Zoning Plan and rezoned such real estate from a residential district to a business district; that the other appellant besides the Davidsons was a builder and contractor who desired to construct upon such real estate buildings to provide a community shopping center with five units for retail sales and personal service shops; that tentative leases had been entered into regarding such improvements and that a building permit had been issued relating to such real estate; that by reason of the action of the lower court the appellants have been unable to proceed in the construction and erection of improvements on such real estate.
The court below entered an order upon such petition to intervene as follows:
'Come now the parties by counsel and the Court having been duly advised in the premises hereby denies petitioners (appellants) petition to intervene.'
The appellants filed assignment of errors in this court on the grounds that the court erred in denying and overruling the petition of appellants to intervene.
The appellees filed a motion to dismiss and a brief in support thereof, and the action of this court on such motion was deferred until the final determination of this cause.
Our statute regarding intervention, § 2-222, Burns' 1946 Replacement, provides as follows:
Courts look with favor upon intervention in proper cases. Gibault Home for Boys v. Terre Haute First Nat. Bank, 1949, 227 Ind. 410, 85 N.E.2d 824; 39 Am.Jur., Parties, § 57, p. 931.
The first order of the court in the instant case, made on April 2, 1956 as set out above denied appellants' petition to intervene. On June 21, 1956, an entry was made which reads as follows: 'It Is Now Therefore, Ordered, Considered, Adjudged and Decreed, by the Court, that the petition of Fred Davidson, Herbert Davidson, and Samuel J. Kagan, to intervene as additional parties be and the same is hereby overruled.' (Our emphasis.)
Appellants' intervening petition, which was denied, was verified and since such petition was denied without any consideration as to its merits or without hearing of evidence the allegations of such petition must be accepted as true....
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Hinds v. McNair
...to appeal directly from the order. State ex rel. Zilky v. Lake Superior Ct., 242 Ind. 128, 175 N.E.2d 9 (1961); Davidson v. Grosskopf, 128 Ind.App. 612, 150 N.E.2d 685 (1958). However, this subdivision denies the right of appeal from the order of intervention, and permits the appeal to be t......
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Denzinger v. Executive Bd. of Charlie B. Wells Memorial, 19457
...and injustice could result from a refusal to permit them to intervene.' They quote from the case of Davidson et al. v. Grosskopf et al., 1958, 128 Ind.App. 612, 150 N.E.2d 685, 688, and say that said case stated 'further that a refusal to permit parties to intervene might be a travesty on j......