Forsyth v. City of Hammond

• Decision Date: 11 April 1895
• Citation: 142 Ind. 505,40 N.E. 267
• Parties: FORSYTH et al. v. CITY OF HAMMOND.
• Court: Indiana Supreme Court

142 Ind. 505

40 N.E. 267

FORSYTH et al.

v.CITY OF HAMMOND.¹

Supreme Court of Indiana.

April 11, 1895.

Appeal from circuit court, Porter county; W. B. Biddle, Special Judge.

Annexation proceedings by the city of Hammond against Oliver O. Forsyth and others. From the judgment of the circuit court reversing the decision of the board of commissioners for defendants, they appeal. Affirmed.

Miller, Winter & Elam, A. L. Jones, and J. W. Youche, for appellants. E. D. Crumpacker, for appellee.

HOWARD, J.

This was a proceeding before the board of commissioners of Lake county to annex certain unplatted territory to the city of Hammond. The board decided against the petition for annexation, and the city appealed to the circuit court of Lake county, from which a change of venue was taken to Porter county, where a special judge was appointed to try the cause. The case was heard by the Honorable W. B. Biddle, special judge, and a jury, and the trial resulted in a verdict and judgment in favor of the city and her petition for annexation.

The appellee contends that this appeal should be dismissed for the reason that all the persons against whom the judgment was rendered have not been made party appellants. To this contention appellants answer that all such defendants not made appellants, save one, did, within one year after the judgment was rendered, file in this court their written declination to join in the appeal; and that, by proof also filed, it is further shown that said defendant not made a party appellant, and not joining in the written refusal to appeal, was also, within the year after judgment, notified of this appeal; asking also that said defendant be now made a party appellant. In this condition of the record, we are of opinion that, while the appeal has been brought with some irregularity of procedure, yet the spirit of the statute regarding the taking of appeals, and also the requirements of our rules and decisions in relation to the same matter, have been practically observed. The purpose of the statute (section 647, Rev. St. 1894; section 635, Rev. St. 1881)¹ was to provide that a part of those against whom a joint judgment was rendered might appeal, without compelling the remaining judgment defendants to appeal, and yet give all an opportunity to join in the appeal, so that but one appeal might be taken in one case. Notice is consequently provided to be given to those not joining in the appeal. If, however, such parties come voluntarily before this court and decline to join in the appeal, it would seem that as to them all is accomplished that was intended by the statute. As to the party served with notice of the appeal, we think the conclusion must be the same; for it is shown that he might have joined in the appeal had he so chosen.

So far as the interests of the appellee are concerned, the year allowed for an appeal having passed, there can be no appeal but this one. Consequently the decision of this court, when made, will leave the appellee's rights fully and finally determined. The appellee, therefore, has no interest personal to herself in asking for the dismissal of the appeal. It thus appears that no one, on either side, who was a party to the judgment, has suffered the loss of any right or interest to which he was entitled, and hence no reason remains for the dismissal of the appeal. The case of Gregory v. Smith (decided at last term) 38 N. E. 395, and other cases cited by counsel, are not in conflict with this conclusion. There all the parties were not before the court; here they are before the court, or have refused to come. The reason for the rule there insisted upon does not exist in this case, and hence the rule itself does not apply.

The appellants' first contention is that the complaint or petition is insufficient, in that it does not show that the owners of the property sought to be annexed to the city had not given their consent to such annexation previous to the bringing of the proceedings before the commissioners. This objection is brought here for the first time. There was no demurrer or motion to make more specific urged to the complaint in the trial court. The statute providing for the annexation of unplatted lands to a city by proceedings before the county board (section 3659, Rev. St. 1894; section 3196, Rev. St. 1881) does not require that it shall be stated in the petition that the owners will not consent to annexation. The want of such consent is implied in the very nature of the proceeding. If there were consent, such a proceeding would be quite unnecessary, for the city might then annex the land by a simple resolution, as provided in the same section of the statute. In the case of Huff v. City of Lafayette, 108 Ind. 14, 8 N. E. 701, although the question was not directly before the court, the opinion was expressed that it is not essential that the petition should contain a statement that the landowners had not consented to annexation. Virtually a like conclusion as to what should be stated in the petition was reached in the recent case of Chandler v. City of Kokomo, 137 Ind. ---, 36 N. E. 847. Nor, as we think, are the cases cited by counsel for appellants in conflict with this conclusion. In truth, there are but two methods provided for the annexation of lands to cities; one being with the consent of the owners, and one without such consent. If the land is platted, and the plat is recorded by the owner, the law implies a consent and agreement on his part that the land may be taken into the city. If the land is not platted, or the plat not recorded, the owner may file his written consent with the city council, agreeing that the land may be annexed. But, in either of these cases, the city is also a party to the transaction, and may accept or refuse to accept the land as a part of the corporate territory. But, in case the property owner does not consent to annexation,-that is, does not make and put on record a plat of his land, or does not file with the city his written agreement that the land may be annexed, while at the same time the city desires such annexation,-then the law provides a method by which the controversy may be tried and settled; and the board of county commissioners is set up as the tribunal before which, subject to appeal, the dispute between the parties may be determined. If, however, the property owner had consented to annexation, there would be no dispute, no controversy, and hence no action before the county board. The law will not presume so vain a thing as that it might be supposed that, though there was consent on the part of the property owners, and though, consequently, the city might have annexed the land by a simple resolution, yet the corporation proceeded to ask the county board, by an adverse proceeding, to do for her what, without delay and without opposition, she might do for herself. The very existence of the controversy, therefore, shows, not only desire for annexation on the part of the city, but also want of consent thereto on the part of the property owner.

It is next contended that, because certain parts of the territory to be annexed are platted, therefore the commissioners had no jurisdiction to act on the petition. In order that any land, platted or unplatted, should be annexed to a city, it is necessary that the land to be annexed should be contiguous to the city limits; that is, that it should actually touch the existing territory of the city. In an action before the board for annexation, this contiguous territory must be unplatted, or, at least, if platted, the plat must, as yet, be unrecorded. However, should there be, within the limits of the territory to be annexed, certain tracts, called “platted lots,” not contiguous to the city limits, and hence not recorded, certainly neither the statute nor any good reason would render such circumstance a cause for defeating annexation by the county board. The mere fact of platting, taken by itself, is rather a circumstance looking to annexation. It is an attempt to impress upon the territory an urban character, and is, in so far, an expression of consent to annexation. It would need only in addition, as we have seen, that the lots should be contiguous to the city, and that the plat should be recorded, to enable the city to make the annexation without the action of the board. In other words, the reasons in favor of annexing such attempted plats of lots are greater than those in favor of annexing unplatted lands themselves. But are such subdivisions of land as are here referred to legal plats, or...