Good v. Western Pulaski County School Corp.

• Decision Date: 16 September 1965
• Docket Number: No. 19989,19989
• Parties: Lorin GOOD et al., Appellants, v. WESTERN PULASKI COUNTY SCHOOL CORPORATION et al., Appellees.
• Court: Indiana Appellate Court

Page 100

210 N.E.2d 100

139 Ind.App. 567

Lorin GOOD et al., Appellants, v. WESTERN PULASKI COUNTY SCHOOL CORPORATION et al Appellees.

No. 19989.

Appellate Court of Indiana, In Banc.

Sept. 16, 1965.

Rehearing Denied Oct. 26, 1965.

[139 INDAPP 568]

Stevens & Wampler, Plymouth, Horner, McDowell & Gast, Winamac, Bowen, Myers, Northan & Givan, Indianapolis, for appellants.

[139 INDAPP 569] Lester L. Wilson, Winamac, Arch N. Bobbitt, William D. Ruckelshaus, Indianapolis, Ruckelhaus, Bobbitt & O'Connor, Indianapolis, of counsel, for appellees.

HUNTER, Judge.

The plaintiffs below, some of whom are appellants in this appeal, as representative citizens, voters and taxpayers in Pulaski County filed suit for an injunction against the defendants, appellees herein. The action below asked to have set aside and held for naught the comprehensive plan for the reorganization of the school corporations in Pulaski County and to have set aside and held for naught the establishment of the Western Pulaski County School Corporation, and to enjoin it and its individual officers from taking over any of the assets of the Pulaski County School Corporation, and to enjoin Pulaski County's School Corporation and its officers from turning over any of its assets to Western Pulaski County School Corporation. The trial was by the court without jury. The issues were formed on the plaintiffs-appellants' complaint, the cross-complaint of the defendant-appellant, Pulaski School Corporation, the defendant-appellants' answer to the complaint and the answer in denial by Western Pulaski School Corporation to the complaint of plaintiff-appellant and cross-complaint of defendant-appellant, and the answer of the defendant-appellee, Western Pulaski School Corporation alleging the de jure existence of Western Pulaski School Corporation and compliance with the school reorganization act of 1959, as amended in 1961, and the replies to such affirmative answers by the plaintiffs and cross-complainants.

[1, 2] The judgment of the court below was that the plaintiffs on their complaint and the defendant, Pulaski County School Corporation, on its cross-complaint, were not entitled to the injunctive relief prayed for; that the restraining order previously issued by the court should be dissolved. The court properly did not render judgment on the affirmative answers alleging the de jure existence of the defendant, Western Pulaski School Corporation, since the determination[139 INDAPP 570] of the de jure existence of a municipal corporation or title to office is not properly cognizable in a suit in equity. State ex rel. McClure, etc. v. Marion Sup. Ct., etc. (1959), 239 Ind. 472, 158 N.E.2d 264; Landes v. Walls (1903), 160 Ind. 216, 66 N.E. 679; Felker v. Caldwell (1919), 188 Ind. 364, 123 N.E. 794; Parsons et al. v. Durand (1898), 150 Ind. 203, 49 N.E. 1047. Separate and several motions for a new trial were timely filed by the plaintiff and cross-complainants, which motions were denied by the court. The various plaintiffs and cross-complainants jointly, separately and severally moved the court for new trial and subsequently, by leave of the court, filed a new and supplemental motion for new trial and subsequently the cross-complainants filed an amended motion for new trial. Taking the motions collectively, we find that they all assign that the decision and judgment of the court is contrary to law; that the decision and judgment of the court is not sustained by sufficient evidence and as to certain special parties that the court erred in admitting evidence over the objection of the plaintiffs and cross-complainants; that the court erred in sustaining the objections to questions asked by the plaintiffs and cross- defendants and the questions asked in testimony offered by the plaintiffs and cross-complainants; that the court erred in overruling the cross-complainants' verified motion to strike all the answers of certain defendants and cross-defendants and to render a judgment of injunction; that the court erred in excluding certain testimony of the cross-complainants' witness, one Ross Robertson; that the court erred in admitting certain testimony of Lamoin Nice, which said testimony is embraced in thirteen separate specifications of error in the motion for new trial of all of the plaintiffs.

On the 16th day of March, 1963, the court overruled the motion for new trial filed by the plaintiffs and cross-complainants.

The assignments of error are:

'1. The Court erred in overruling the amended and supplemental motion for a new trial of the Appellants, Lorin [139 INDAPP 571] Good, Harold Mahler, James Allen, Harold Hoover, Richard Thompson, Richard Fahler and Daniel Sayers.

2. The Court erred in overruling the amended motion for a new trial of the Appellants, Pulaski County, School Corporation, (identical with the County Board of Education of Pulaski County, Indiana), and John S. Capper as the Treasurer of the Pulaski County School Corporation.'

The appellants concede in their argument that the alleged errors presented in the various motions for new trial are substantially the same; that the basic theory of the complaint and cross-complaint are similar and the evidence presented applied almost equally to each and the principles of law were almost identical. The appellants then state for the purpose of the brief the argument of plaintiff-appellants and defendants-appellants will be combined.

The appellants concede that the assignment in their motion for a new trial to the effect that the decision of the court is not sustained by sufficient evidence raises no question, since this is an appeal from a negative judgment, rather the appellants present their entire argument under the assignment that the decision of the court is contrary to law. We feel that it is necessary to trace through the various proceedings leading from the original action of the County Committee up to the perfection of the appeal to this Court and we will set these proceedings out in narrative form.

The County Committee for the reorganization of school corporations of Pulaski County was created and the members were appointed; the Committee met and organized and after a series of meetings, several of which were public meetings, the plan as finally presented by a majority of the County Committee and approved required the creation of two school corporations, one to be known as the Western Pulaski School Corporation and the other as the Eastern Pulaski School Corporation; during the time the plan was being formulated, the Pulaski County School Corporation was the corporation operating in both areas and has continued to do so during [139 INDAPP 572] the pending of this action and appeal; later hearings were had on the plan and the State Commission then approved the plan.

The appellees in this cause applied for and secured an extension of time within which to file brief, in which petition the appellees were required to and did show that said appellees' brief would be on the merits and that all motions to dismiss had been filed. Rule 2-16. This rule, as far as it is binding upon the court, is set forth very clearly by the Supreme Court in the case of Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629. The Supreme Court cited an opinion by this court--Brodt v. Duthie (1933), 97 Ind.App. 692, 697-698, 186 N.E. 893, 895--in which case the word 'merits' was defined in the following language:

"The word 'merits' should be understood as meaning the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court.' 5 Words and Phrases, First Series, page 4493, and cases cited. 40 C.J., p. 650.'

The Supreme Court, using this case as authority, stated:

'The appellee applied for and received an extension of time for the filing of his briefs. Rule 2-16 requires the petition to 'state facts showing that the court in which the cause is pending has jurisdiction and that the brief will be on the merits.' An objection that the evidence is not in the record does not go to the merits of the appeal, and by his petition for extension of time the alleged error was waived. Brodt v. Duthie, 1933, 97 Ind.App. 692, 186 N.E. 893.' Gamble v. Lewis, supra, 227 Ind. at p. 459, 85 N.E. at p. 632.

Following the case of Gamble v. Lewis, supra, this court, in very significant language in the case of Biel, Inc. v. Kirsch (1958), 130 Ind.App. 46, 49-50, 153 N.E.2d 140, 142, stated as follows:

'The Supreme Court said in Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629, 632: 'An objection that the evidence is not in the record does not go to the merits of the [139 INDAPP 573] appeal, and by his petition for an extension of time the alleged error was waived.' If the absence of the evidence from the record does not concern the merits of an appeal surely its absence from the appellant's brief could not be so considered. This court specifically held that an objection that the appellant's brief is not in proper form or does not comply with the rules does not go to the merits of the cause. (citing) Brodt v. Duthie, 1933, 97 Ind.App. 692, 186 N.E. 893. We therefore conclude that the appellee has waived his right to the affirmance of the judgment herein because of defects in the appellant's brief and this case must be decided on its merits.'

Therefore, considering this case on the merits, as we are permitted to do by reason of the holdings of this court and the Supreme Court, supra, the first major contention asserted by the appellants in their brief on the merits of this case ¹ is that it is not legally possible for this plan to be put into effect and that the same cannot be implemented so that it can become operable. A Condensed Recital of the contents of the comprehensive plan is set forth in extensive substance in Appellants' Brief. The plan as finally adopted by a majority of the...