Gibson v. Town of Danville
| Citation | 170 N.E.2d 444,241 Ind. 157 |
| Decision Date | 30 November 1960 |
| Docket Number | Nos. 29935 and 29942,s. 29935 and 29942 |
| Parties | William S. GIBSON, Frances M. Gibson, Ernest H. Murry, Viola M. Murry and all other persons similarly situated, Appellants, v. TOWN OF DANVILLE; Board of Trustees of the Town of Danville; Crawford Taylor, Forrest Blanton and Larry I. Couch as a purported Board of Assessors herein; and Larry I. Couch and J. Gordon Gibbs, as Engineer and Attorney for the Town of Danville, Appellees (two cases). |
| Court | Indiana Supreme Court |
John D. Hughes, Arthur H. Northrup, Indianapolis, Walter H. Linn, Crawfordsville, for appellants. Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, of counsel.
J. Gordon Gibbs, Pros. Atty., Stevenson, Kendall & Stevenson, Danville, for appellees.
These cases are here on transfer from the Appellate Court under Acts 1901, ch. 247, § 15, p. 565, being § 4-209, Burns' 1946 Replacement, four judges failing to agree. Because they involve the same parties and subject-matter, and present essentially the same question for our determination, they are here consolidated and so treated in this opinion.
Both actions arose out of a proceeding by the Town Board of Danville, Indiana, for the construction of a local sanitary sewer across lands both within and without the corporate limits of the town, under the provisions of Acts 1905, ch. 129, § 157, p. 219, being § 48-4601, Burns' 1950 Replacement, and Acts 1909, ch. 93, § 1, p. 238, being § 48-4602, Burns' 1950 Replacement.
On May 19, 1953, the Town Board of Danville adopted a resolution confirming Declaratory Resolution No. 1-1953, adopted April 25, 1953, for the construction of a local sanitary sewer across certain lands both within and without the corporate limits of the town, and particularly described in the Declaratory Resolution.
On August 20, 1953, pursuant to § 48-4602, supra, the Town Board of Danville filed a copy of all the proceedings had in the matter of such proposed improvement, including a list of all persons whose property would be affected by the construction of such sewer, in the Hendricks Circuit Court. Such proceedings were duly docketed and the court fixed September 21, 1953, as the date when the same should be heard. Statutory notice of the hearing of such proceedings was duly published on August 27, September 3, and September 10, 1953. On May 5, 1954, hearing was held in the Hendricks Circuit Court, at the conclusion of which the court ordered that the improvement as proposed by the Town Board should be made.
On July 7, 1954, the Town Board of Danville filed in the Hendricks Circuit Court a report of the award of a contract for the construction of the proposed sewer.
On August 3, 1954, the Hendricks Circuit Court, pursuant to § 48-4602, supra, appointed 'three competent, disinterested persons' as the Board of Assessors to assess benefits and award damages, if any, by reason of the construction of such sewer. Such assessors filed their report with the court on April 13, 1955.
No further action is shown by the record until September 13, 1955, when appellants herein and others not a party to either of these appeals, filed a 'Petition to Reject 'Assessment' filed April 13, 1955 and to Appoint New Assessors.' Although such petition attacks only the qualification of the assessors and the legality of their report, its prayer asks for the discharge of the assessors and the appointment of new ones to prepare a revised assessment roll. However, when the petition is viewed in toto it must be considered as an attempted appeal from the assessments contained in the report filed on April 13, 1955.
Subsequently, on November 12, 1955, the Town of Danville filed its 'Motion to Strike Petitioner's 'Petition to Reject Assessment" for the reason that it was not filed within the time fixed by statute for appealing from assessments. On January 3, 1956, the Hendricks Circuit Court sustained such motion.
On January 4, 1956, the Town of Danville filed in the Hendricks Circuit Court a 'Certification of Completion and Acceptance of Local Sanitary Sewer', together with a petition for an order directing the clerk to make out, in duplicate, an assessment roll and to certify the same to the Clerk-Treasurer of the Town of Danville and to the Treasurer of Hendricks County.
On the same day, January 14, 1956, appellant, William L. Gibson, et al., filed a 'Petition for Corrected Assessment Roll', which petition was overruled on April 17, 1956. Also, on the same day, the Hendricks Circuit Court entered an order which, because of its importance, we set out in full as follows:
'Comes now the Town of Danville, Hendricks County, State of Indiana, by and through J. Gordon Gibbs, Town Attorney, and files their 'Petition For Order Directing The Clerk To Make A True and Corrected Assessment Roll', as follows, (H. I.), and the court having examined said petition, and being duly advised, and it appearing from an examination of the records of this court that the Board of Assessors having filed, with the Clerk of this Court, their assessment roll on, to-wit: April 13, 1955, and it further appearing that no remonstrances were filed challenging the correctness of such assessment roll within the time as provided by statute and no appeal remaining undisposed of and it further appearing that said assessment roll has not been changed, modified or altered by any legal proceedings, the court now approves and grants said petition in all things.
'It is, therefore, ordered, considered and adjudged that the Clerk of this Court be and she is hereby directed to certify said assessment roll in duplicate, showing the names of the property holders, together with a description of each piece or parcel of property included in, and affected by 'Local Sanitary Sewer Improvement Resolution #1-1953', together with the benefits and damages, if any, assessed, by the assessment board, upon or in favor of such parcels, and certify the same, under the seal of the court, and deliver one copy thereof to the Clerk-Treasurer of the Town of Danville, and one copy to the Treasurer of Hendricks County.
/s/ 'George W. Hadley
'Judge' Subsequently, on May 2, 1956, appellant Gibson, et al., filed what they designated as '(1) Notification to Court of Inaccuracy of Assessment Roll (2) Remonstrance against Assessment (3) Demand for Hearing on Assessments (4) Petition to Vacate Proceedings (5) Motion to Modify Judgment and (6) Motion for a New Trial', together with an application for a change of venue from the county. The motion for a change of venue was granted over the objections of the Town of Danville, and the venue was changed to the Montgomery Circuit Court. The following proceedings in Cause No. 29,942 herein were then had in that court.
On June 18, 1956, the Town of Danville filed its written motion to strike or overrule the multifarious notification, motion and petition, hereinabove mentioned, and filed in the Hendricks Circuit Court on May 2, 1956, for the reason that appellant, William L. Gibson, et al., having failed to appeal to the Hendricks Circuit Court from the assessors' report within fifteen days from the date on which it was filed, viz., April 13, 1955, all objections thereto were waived and the court had no jurisdiction to entertain any further objections or remonstrance.
On October 3, 1957, the Montgomery Circuit Court overruled such notification, motion and petition filed by appellant, William L. Gibson, et al., in the Hendricks Circuit Court on May 2, 1956.
Subsequently, on October 24, 1957, appellant, William L. Gibson, et al., filed their 'Motion to Modify Judgment' requesting a reversal of the court's action in overruling their multifarious pleading filed on May 2, 1956. No ruling on the motion to modify appears in the transcript. However, on December 26, 1957, appellants herein filed praecipe for a transcript of the entire record in Cause No. 29,942 in this court.
We are confronted at the outset with appellees' motion to dismiss or affirm Cause No. 29,942. However, in view of the conclusion we have reached, it seems preferable to determine the matter upon basic considerations. Appellants, inter alia, assert error in the overruling of their claimed motion for a new trial.
The only reference to a motion for a new trial, other than in the assignment of errors, which we have been able to find from a careful search of the record as filed in this court is in the title of the multifarious pleading hereinabove set out, and in the prayer thereto which is as follows:
'Wherefore, these parties pray (1) that the Court, being hereby notified of the inaccuracy and incompleteness of the assessment roll take such steps as the Court deems necessary to complete and correct the assessment roll and certify such corrections to the Clerk to be incorporated in the final assessment roll (2) set a date for hearing testimony of witnesses and documentary evidence of the facts alleged in this remonstrance and make a special finding of facts on the allegations herein and conclusions of law based on such findings and such further disposition of this cause as is indicated by such findings of fact and conclusions of law (3) that the Court require hearings to be held prior to or subsequent to the trial of the facts alleged in this remonstrance by the Assessment Board in accordance with the requirements of statute (4) that if upon trial the facts alleged in this pleading are shown to be true or if the Court, without trial, finds certain allegations which go to the validity of these proceedings on the basis of the record herein that the Court vacate the proceedings as void (5) that the judgment of the Court on April 17, 1956, be modified...
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