Hamilton v. City of Indianapolis

• Decision Date: 11 January 1946
• Docket Number: No. 17464.,17464.
• Citation: 116 Ind.App. 342,64 N.E.2d 303
• Parties: HAMILTON v. CITY OF INDIANAPOLIS.
• Court: Indiana Appellate Court

116 Ind.App. 342

64 N.E.2d 303

HAMILTON

v.CITY OF INDIANAPOLIS.

No. 17464.

Appellate Court of Indiana, in Banc.

Jan. 11, 1946.

Appeal from Marion Superior Court; Ralph Hammill, Judge.

Suit under Burns' Ann.St. § 48-6105, by Ermel M. Hamilton against City of Indianapolis for reinstatement of plaintiff to his position as member of Police Department of defendant city on ground that his dismissal by the Board of Safety of defendant city was fraudulent, capricious, and illegal. From an adverse judgment, the plaintiff appeals.

Affirmed.Rochford & Rochford, of Indianapolis, for appellant.

Arch N. Bobbitt, Corp. Counsel, and Henry B. Krug, City Atty., both of Indianapolis, for appellee.

CRUMPACKER, Judge.

Prior to the 8th day of April, 1941, the appellant was a member of the police department of the appellee, City of Indianapolis, and had held such position for more than 11 years. On said date he was dismissed from the service by the Board of Safety after a hearing on charges theretofore preferred against him by the chief of the police department. The appellant thereupon filed a verified complaint in the Marion Superior Court pursuant to Sec. 48-6105, Burns' 1935 (Supp.), wherein he named the appellee as the sole defendant and charged that his dismissal by the Board of Safety was fraudulent, capricious and illegal and prayed his reinstatement. Summons was issued on this complaint but the appellee, notwithstanding the provisions of Sec. 48-6105, supra, failed to file in said court a transcript of all papers and entries and other parts of the record relating to the matter within 10 days after the service of such summons. Contending that such failure was fatal to the appellee's right to defend the appellant moved for judgment as prayed for in his complaint. This motion was overruled and the case was tried de novo to the court upon the general issue interposed by the statute in the absence of pleadings by the appellees. Sec. 48-6105, supra. The court found that the decision of the Board of Safety should in all things be affirmed and entered judgment accordingly. After the appellant's petition for a rehearing was overruled he perfected this appeal which presents for consideration the following questions: (1) Did the court err in overruling the appellant's motion for judgment on the complaint because of the appellee's failure to file a transcript of the record within the time required by the statute? (2) Is the evidence sufficient to sustain the court's decision? (3) Is such decision contrary to law?

Sec. 48-6105, supra, after specifying grounds for the removal of police officers, setting up a procedure therefor and providing for an appeal from the decision of the Board of Safety by filing a complaint in the appropriate circuit or superior court, further provides as follows: ‘Within ten (10) days after the service of summons said board shall file in said court a full, true and complete transcript of all papers, entries and other parts of the record relating to such particular case, and inspection thereof by the person affected, or by his or her agent, shall be permitted by the board before such appeal is filed where so requested.’

The appellant's complaint was filed in the Marion Superior Court on May 5, 1941, and summons was issued and served upon the appellee the same day. The Board of Safety, however, did not file the transcript required by the statute above quoted until September 5, 1944. Trial was commenced on the 16th day of January, 1945. Did the Board of Safety's dereliction in its duty to file the transcript within the time required by the statute entitle the appellant to judgment on his verified complaint? We think not. The record fails to show, nor does the appellant indicate, in what respect his rights on appeal were prejudiced by the delay. He was in possession of all the facts necessary to prepare and file his appeal in the Marion Superior Court. He had access to the transcript from September 5, 1944, to January 16, 1945, during which time he could examine the same for any purpose necessary to the full and complete presentation of his case to the court. The trial was de novo and he had full opportunity, of which he availed himself, to introduce the testimony of his own witnesses and to cross-examine those who testified...