Glosser v. City of New Haven
Decision Date | 26 February 1971 |
Docket Number | No. 1069S223,1069S223 |
Citation | 256 Ind. 33,267 N.E.2d 67 |
Parties | Vearl G. GLOSSER et al., Appellants, v. The CITY OF NEW HAVEN, Indiana, the Mayor and the Common Council of the City of New Haven, Indiana, Appellees. |
Court | Indiana Supreme Court |
Richard W. George, Fort Wayne, Arthur H. Gemmer, Indianapolis, for appellants; Bloom & Bloom, Fort Wayne, Gemmer & Frosch, Indianapolis, of counsel.
Arthur H. Fruechtenicht, Robert J. Parrish, Fort Wayne, George B. Gavit, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.
The plaintiffs (appellants) filed their complaint in the trial court '* * * to enjoin ultra vires action by the city of New Haven and its Mayor and its Common Council, to set aside certain sewage ordinances as capricious, discriminatory and void.' The trial court held the action to be a public lawsuit as defined in Indiana Acts of 1965, Chapter 357, Burns Ind.Stat. 1968 Repl., § 3--3301 et seq. The trial court then on partial summary judgment held two of the three questioned ordinances valid. Trial was had on the question of the validity of the third ordinance. After hearing the evidence, the court also held this ordinance valid.
The appellant now claims error by the trial court, first in the ruling that the action was a public lawsuit, and second on the findings that the questioned ordinances were valid. The appellees filed a motion to dismiss this appeal' on the ground that the appellants failed to file a notice of appeal within the thirty day period required by the public lawsuit statute. Burns, 1968 Repl., § 3--3306. Appellants contend that this action is not a public lawsuit and as such is not subject to the public lawsuit statute. Appellants maintain they have the usual ninety day period in which to bring their appeal under the Rules of this Court. In support of their contention appellants maintain that they do not fall within the two classes of persons who could bring a public lawsuit. They cite as their authority the recent case of City of Elkhart v. Curtis Realty Co. (1970), Ind., 256 N.E.2d 384, 387, 20 Ind.Dec. 503. In that case this Court held the following factors for consideration in determining whether a case is a public lawsuit or not:
In the case at bar the appellants are neither taxpayers nor citizens of the city of New Haven. They reside outside the city limits and therefore do not have the legal status necessary to maintain a public lawsuit. In Gariup v. Stern (1970), Ind., 261 N.E.2d 578, 22 Ind.Dec. 455, this Court reaffirmed the test as to whether a suit is a public lawsuit or not through resolution of the legal status of the parties and the nature of the plaintiff's claim. In the case at bar the action falls under the second categorization because it is an action seeking an injunction of 'the construction, financing, or leasing of any public improvement by a municipal corporation.' This brings the action under the public lawsuit definition found in Burns, 1968 Repl., § 3--3301. We hold, however, the public lawsuit statute should be strictly construed to require both a proper legal status and type of lawsuit before a plaintiff is required to bring his action exclusively under the provisions of the public lawsuit statute. We hold, therefore, that although this is the type of action which comes under the public lawsuit statute the appellants do not fall within that group of persons having legal status to maintain such a suit.
Appellees' motion to dismiss heretofore filed in this Court is, therefore, denied.
The appellants are not precluded from bringing a private action as they have done here when they have a personal interest in the subject. See Gariup v. Stern, supra. In this case the appellants had sufficient standing to bring this cause of action since they are ratepayers to the city and the expenditures made by the municipal corporation would necessarily affect their sewer rates. We hold this to be a sufficient personal interest for appellants to maintain this cause of action. City of Elkhart v. Curtis Realty Co., supra.
The trial court granted appellees' motion for summary judgment on ordinances G--26--67 and G--27--67. The court denied summary judgment as to ordinance G--25--67 finding that there were issues of fact existing as to that ordinance which had to be determined by trial. Partial summary judgment is permitted in Indiana in Rule 56(D) of the present rules of this Court. This rule is identical with Burns Ind.Stat. § 2--2524(d) which existed at the time the motion for summary judgment was presented to the trial court. The rule reads as follows:
From a procedural point of view the trial court was therefore correct in disposing of the case by a partial summary judgment deciding the remaining issues at a subsequent trial. The court's ruling on partial summary judgment was interlocutory in character and was not an appealable final judgment. Fender v. Herald-Times, Inc. (1969), Ind.App., 251 N.E.2d 843,19 Ind.Dec. 162. Burns Ind.Stat. § 2--3218.
Appellees assert that the appellants have failed to present the question of summary judgment because of the failure to comply with Rules 2--6 and 2--2 of the then existing Rules of this Court. While a proceeding in summary judgment is not a trial, a partial summary judgment results in some issues being determined as a matter of law and others being tried for determination of fact. Therefore, in the case of a partial summary judgment there is a trial. A motion for a new trial as it existed at the time of this trial or a motion to correct errors as it exists today was the proper procedure. The ruling on partial summary judgment was interlocutory in character and not directly appealable. In such cases the appeal must lie through asserting error in the motion for new trial or the motion to correct errors as the case may be....
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