Glosser v. City of New Haven

Decision Date26 February 1971
Docket NumberNo. 1069S223,1069S223
Citation256 Ind. 33,267 N.E.2d 67
PartiesVearl 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.
CourtIndiana 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.

GIVAN, Justice.

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:

'The decisive aspect of this case is the proper characterization of appellee's legal status and its suit. The Public Lawsuit Statute provides that plaintiffs to a 'public lawsuit' may sue either in their capacity as citizens or as taxpayers and that such suits are deemed class suits. Burns § 3--3303. Appellee cannot here be characterized merely as a taxpayer or citizen.'

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:

'(D) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.'

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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12 cases
  • Indiana State Fair Bd. v. Hockey Corp. of America
    • United States
    • Indiana Appellate Court
    • 28 Agosto 1975
    ...resident taxpayers has had the right to bring an action in equity to contest governmental tax spending policies. Glosser v. City of New Haven (1971), 256 Ind. 33, 267 N.E.2d 67; Zoercher v. Agler (1930), 202 Ind. 214, 172 N.E. 186; Crampton v. Zabriskie (1879), 101 U.S. 601, 25 L.Ed. 1070. ......
  • Cordial v. Grimm
    • United States
    • Indiana Appellate Court
    • 28 Abril 1976
    ...in holding that there was no genuine issue as to any material fact. Trial Rule 56(C), Ind. Rules of Procedure; Glosser, et al. v. New Haven (1971), 256 Ind. 33, 267 N.E.2d 67; Brutus v. Wright (1975), Ind.App., 324 N.E.2d 165. In determining whether such a question of material fact exists, ......
  • Raper v. Union Federal Sav. and Loan Ass'n of Evansville
    • United States
    • Indiana Appellate Court
    • 12 Noviembre 1975
    ... ... Apple et al. (1971), 149 Ind.App. 529, 274 N.E.2d 402; Glosser et al. v. New Haven (1971), 256 Ind. 33, 267 N.E.2d 67 ... 2 Raper takes ... ...
  • Hatcher v. Board of Com'rs of Lake County
    • United States
    • Indiana Appellate Court
    • 29 Diciembre 1972
    ...avoid the sanctions of the Public Lawsuit Statutes by claiming that they do not come within the two-pronged test of Glosser v. City of New Haven (1971), Ind., 267 N.E.2d 67. 7 Glosser v. City of New Haven, supra, has no application to the facts of this case. City of Elkhart v. Curtis Realty......
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