Hall v. Kincaid

• Decision Date: 15 March 1917
• Docket Number: No. 9537.,9537.
• Parties: HALL et al. v. KINCAID et al.
• Court: Indiana Appellate Court

64 Ind.App. 103

115 N.E. 361

HALL et al.

v.KINCAID et al.

No. 9537.

Appellate Court of Indiana, Division No. 2.

March 15, 1917.

Appeal from Circuit Court, Warrick County; Ralph E. Roberts, Judge.

Petition by J. Fred Hall and others for removal of county seat of Spencer county under Burns' Ann. St. 1914, § 5849, opposed by Frank Kincaid and others. Petition dismissed by board of commissioners, and petitioners appealed to circuit court, where petition was dismissed on the record, and petitioners appeal. Judgment modified with respect to costs; otherwise affirmed.Tracewell & Tracewell and Frank C. Gore, all of Evansville, for appellants. Swan & Mason, Louis N. Savage, Wm. H. Brown, Allen J. Payton, and B. F. Huffman, all of Rockport, for appellees.

DAUSMAN, J.

Pursuant to the provisions of the Act approved July 18, 1885, being section 5849 et seq., Burns 1914, J. Fred Hall and others filed with the board of commissioners of Spencer county their petition for the removal of the county seat from Rockport to Chrisney. The petitioners complied with, and their petition conformed to, the requirements of said act. The petition was signed by 2,103 persons, being more than 40 per cent. of the whole number of legal voters in said county. Four hundred and ten of said petitioners filed their withdrawal from said petition and were permitted to withdraw therefrom by the order of the board. On the 3d day of May, 1915, the board being in regular session, the following proceedings took place:

The city of Rockport and Frank Kincaid, a resident, a taxpayer, and legal voter in said county, filed their separate motions to dismiss the petition, which motions were overruled. Said city and seven persons filed their separate demurrer to said petition, which demurrer was overruled. Said city and seven persons filed their verified remonstrance against the petition and proceedings, and against the granting of said petition and the removal of the county seat. The petitioners demurred to the remonstrance, which demurrer was sustained. The remonstrators filed answer in denial. Thereupon the board made the following finding and order:

“This cause and matter coming on for hearing, the court, having heard the evidence in same, finds that said petition is sufficient and contains the required number of names, more than 40 per cent of the legal votes of said county, as shown by the vote of secretary of state at the last general election therein, and that the deed accompanying and deposited with said petition is sufficient and conveys legal title to the real estate therein described, and that the abstract and evidence of title accompanying and deposited with same discloses good and sufficient title, and that the affidavit of signatures to said petition is sufficient, and that the petitioners have deposited with the auditor of said county $200 for pay for architect, and that the bond filed and deposited herein by petitioners is sufficient and is approved by the court, and that the notice given of the pendency of said petition by the auditor of said county is sufficient and was given the required length of time prior to this meeting of said board of commissioners. It is therefore ordered by said board of commissioners of Spencer county, Ind., that the auditor of said county notify the Governor of Indiana to appoint three appraisers, as prescribed by law, to appraise the real estate of said Spencer county, Ind., and that on receiving notice of such appointment and ascertaining a proper date, said auditor of Spencer county, Ind., give proper notice of the time and place of the meeting of such appraisers to make said appraisement.”

The auditor notified the Governor of the action of the board, and thereupon the Governor appointed Hon. Inman H. Fowler, of Owen county, Hon. Wm. H. Vollmor, of Knox county, and Hon. Benj. F. Adams, of Monroe county, three disinterested persons, nonresidentsof Spencer county, as commissioners to examine the real estate of the county seat of Spencer county and assess the value thereof, including the buildings and improvements thereon situate, as provided by section 5849, Burns' Revised Statutes 1914, and to perform all and singular the duties as such commissioners as provided by law. The auditor gave due notice of the appointment of said commissioners and that they would meet in the courtroom of the county courthouse in the city of Rockport, in Spencer county, at the hour of 10 o'clock a.m. on Tuesday, June 1, 1915, and would then and there proceed to perform all and singular their duties as such commissioners. At the time and place fixed in said notice the said appraisers appeared and were duly sworn to faithfully, impartially, and honestly examine and appraise the real estate belonging to Spencer county, Ind., and the buildings and improvements thereon situate, being in the city of Rockport, and assess the value thereof according to their best judgment. The petitioners and the objectors and their respective counsel appeared before said appraisers. The appraisers made an examination of said real estate and the buildings thereon. A shorthand reporter was employed and a hearing was given. Witnesses were examined by and in behalf of both the objectors and the petitioners as to the value of the real estate and the improvements thereon. After all the evidence had been taken and counsel had the opportunity of being heard, the said appraisers assessed the value of the real estate and the improvements thereon, and one copy of the appraisement was filed with the auditor of Spencer county, and the other copy was transmitted by mail to the Governor of said state. The valuation so fixed is as follows: Real estate, $28,120; courthouse, $17,000; sheriff's residence, jail, and barn, $7,000; other buildings, $3,650-total, $55,770.

On the 7th day of June, 1915, the petitioners and their attorneys appeared before the board and excepted and objected to the report of the appraisers and asked for a reappraisement of said property, which request was denied. Thereupon the board made the following finding and judgment:

“And this court, having under consideration the matter of said petition and proceedings and the report of appraisal of said property made and filed by said appraising commissioners as appraisers duly appointed therein, and the report of said auditor of said county in relation to same, approves said reports, and finds that the facts stated in said reports are true, and that the value of the county buildings of said county as thus appraised are as follows; that the courthouse of said Spencer county, Ind., is of the value of $17,000, and that the sheriff's residence, jail, and barn of said Spencer county, Ind., on lots 46 and 47, W. R. Heynes donation to Rockport, Ind., is of the value of $7,000, and that the appraised value of said county buildings exceeds $20,000, and that the appraised value of said real estate of said Spencer county, Ind., belonging to said Spencer county, including the buildings and improvements thereon situate, is $55,770. It is therefore considered, ordered, and adjudged by the court that the appraised value of the courthouse, sheriff's residence, and jail and barn situate on the real estate of said county seat belonging to said Spencer county, Ind., is $24,000, and that the appraised value of the entire real estate of said county seat thereon situate is $55,770 and that this court and board of commissioners has no authority or power to order an election on the question of the removal of the county seat of said Spencer county, Ind., and that such an election is not ordered. And it is considered, ordered, and adjudged that the petitioners herein pay the costs, including appraisers and witness fees herein, each petitioner being jointly and severally liable therefor in the amount thereof up to the date of the withdrawal by any petitioner respectively, and this cause is ended.”

The petitioners then prayed an appeal to the Spencer circuit court, which was granted on the filing of the required bond.

A transcript of the proceedings before the board was duly filed in the circuit court of Spencer county by the county auditor. A change of venue was granted, and the proceeding transferred to the circuit court of Warrick county. In the latter court the petitioners and remonstrators appeared. A large number of petitioners were permitted to withdraw; those withdrawals being in addition to the withdrawals before the board. Various other steps were taken, among which was the filing of a motion by the remonstrators for judgment in their favor on the record. This motion was sustained, and thereupon the court made the following finding and rendered the following judgment:

“Now, on this December 20, 1915, come the plaintiffs by Tracewell & Tracewell, their attorneys, and come the defendants by Swan & Mason and L. N. Savage, their attorneys, and the court having under advisement the motion heretofore filed and made by the defendants for judgment in their favor on the record and proceedings herein and the appraisement heretofore made by the appraising commissioners appointed therefor herein by Hon. Samuel M. Ralston, Governor of Indiana, this court now here sustains said defendants' motion, and finds for the defendants and against the petitioners herein, and that the remonstrants, defendants herein, are entitled to judgment herein, to which the petitioners herein at the time except, and ask leave to file their motion to modify said finding and for a new trial herein, and the court now here fixes December 27, 1915, a. m. to file same, and on motion of petitioners, by order of court the defendants' said motion for judgment and petitioners' exceptions thereto are made a part of the record herein. *** and the court now here renders judgment against the plaintiffs, petitioners herein, and in favor of the said defendants, remonstrants herein, on the finding of the court hereinbefore made. It is therefore considered and...