Everett v. Ward, 969S198

Decision Date05 March 1971
Docket NumberNo. 969S198,969S198
Citation256 Ind. 94,267 N.E.2d 174
PartiesLeo EVERETT, Trustee of Union Township and Union School Township, Boone County, Indiana, Emsley Wright, John Artman, Daniel Vogel, Harold Schocke, and Herman Moore, for themselves individually and separately, and for and on behalf of all other citizens, school patrons and taxpayers of Union School Township, Boone County, Indiana, similarly situated, State of Indiana, on the Relation of Union School Township, Boone County, Indiana, Appellants, v. Edward J. WARD, George H. Graves, Carlton Hutton, Arthur S. Lindberg, and Donald A. Stackhouse, George H. Graves, Edwin J. Ward, Carlton Hutton and Arthur Lindberg, Claiming to Constitute the Board of School Trustees of the Eagle-Union Community School Corporation, Appelles.
CourtIndiana Supreme Court

Donald E. Bowen, Frank E. Spencer, Indianapolis, for appellants.

David S. Richey, Parr, Richey, Obremskey, Pedersen, & Morton, Lebanon, for appellees.

ARTERBURN, Chief Justice.

This is an appeal from the issuance of a temporary injunction in a school consolidation and reorganization controversy.

On June 3, 1969, the appellee filed a 'Verified Petition for Mandate or in the Alternative a Temporary Injunction and Permanent Injunction and Petition for Restraining Order Without Notice' against Leo Everett, Trustee of the Union School Township, Boone County, Indiana, to restrain him from maintaining possession and control over the books, records, and territorial area of Union School Township and directing him to turn such assets over to the School Board of the Eagle-Union Community School Corporation. The court issued a temporary restraining order without notice and thereafter the appellants filed a motion to dissolve the restraining order and to deny defendant's request for a temporary and permanent injunction. On August 1, 1969, the trial court overruled the appellants' motion to dissolve and issued an order continuing the restraining order as a temporary injunction. The appellants argue that there was no hearing as a basis for the issuance of the temporary injunction and that the temporary injunction in fact, ousted a trustee from his office, and thus determined the title to the office by a procedure not permitted under the law.

Appellants state with reference to the hearing: '* * * there was no oral testimony presented, and the only evidence was the affidavits and certificate of the Clerk, filed with the Court by the Defendants, and set out in the Transcript of the Proceedings as follows: * * *' The appellees, however, state that these affidavits and papers were filed at the hearing to dissolve the restraining order upon which the temporary injunction was issued to prove the legality of the Eagle-Union Community School Corporation, and thus prove that its title and right to the school property was sufficient grounds for the issuance of the temporary restraining order. With this contention we must agree, since in the...

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