Keene v. Michigan City, 20033

• Decision Date: 09 September 1965
• Docket Number: No. 20033,No. 1,20033,1
• Citation: 210 N.E.2d 52,137 Ind.App. 477
• Parties: Raymond KEENE et al., Appellants, v. MICHIGAN CITY, Indiana, et al., Appellees
• Court: Indiana Appellate Court

Page 52

210 N.E.2d 52

137 Ind.App. 477

Raymond KEENE et al., Appellants, v. MICHIGAN CITY, Indiana, et al., Appellees.

No. 20033.

Appellate Court of Indiana, Division No. 1.

Sept. 9, 1965.

[137 INDAPP 478]

Fox, Franceschini, Transki & Martin, Michigan City, for appellants.

Frank A. Castello, Michigan City, for appellees.

WICKENS, Judge.

The City of Michigan City instituted action to annex approximately 400 acres. Thereafter appellants filed their remonstrance under Acts 1905, ch. 129, Sec. 243, p. 219, as amended, being Sec. 48-702 Burns' 1963 Replacement. The trial court determined that the remonstrance complied with statutory requirements. On trial the court found facts specially and [137 INDAPP 479] rendered its conclusions of law and judgment for annexation by appellee city.

This action comes before this court without the aid of a brief from appellees. However, appellees are entitled to the benefit of everything contained in the record which may prevent reversal without filing any brief at all. State ex rel. Garn v. Board of Election Com'rs, etc. (1906), 167 Ind. 276, 288, 78 N.E. 1016. On the other hand, we are not required to search the record and if a prima facie case is made by appellants' brief the judgment will be reversed. Muscatatuck State School v. Derringer (1963), 244 Ind. 318, 320, 192 N.E.2d 735.

Although the reviewing court might be justified in treating appellees' failure to present a brief as a confession of error, where public interest is involved the case may be considered upon the merits. Ralston v. Ryan (1940), 217 Ind. 482, 483, 484, 29 N.E.2d 202.

We deem public interest to be involved where a municipality has sought to annex territory. Consideration will therefore be given to the merits of this appeal.

Assigning that the decision is not sustained by sufficient evidence and is contrary to law, appellants assert a total failure of the evidence to establish the primary determinants as set out in Sec. 48-702, Burns', supra.

Where there is a special finding of facts, and where appellants assert that it is not sustained by sufficient evidence and is contrary to law, they are entitled to have this court determine whether among the special findings there is one which is essential to the decision made by the trial court which is not supported by any evidence or inferences [137 INDAPP 480] reasonably to be drawn therefrom. Smith v. Mesel (1949), 119 Ind.App. 323, 325, 84 N.E.2d 477 (Transfer denied); Treesh v. DeVeny (1945), 116 Ind.App. 305, 308, 64 N.E.2d 41; Mertz, Admr. V. Wallace (1929), 93 Ind.App. 289, 298, 169 N.E. 333 (Transfer denied).

An examination of the evidence most favorable to appellees discloses that the proposed territory to be annexed is contiguous to the city. Part of this area is under cultivation and the remainder is wooded; residences and a church are contained therein. The tract is suitable for residential purposes. Twenty-five per cent of the area within the present city limits is vacant, unimproved land. There are two or three miles of dirt roads in the city. The evidence shows that the city has not established streets or sewers at public expense. A sewer under construction adjoins part of the area.

The city has furnished water outside its limits. In addition, a city water main is available to the annexed territory. However, water can be provided only if mains are paid for by consumers or a subdivider. A person paying for the extension of mains outside of the city could obtain water without annexation.

Evidence was received pertaining to the city's tax rate and finances. The evidence further discloses that prices of land in the area to be annexed have...