King v. City of Bloomington, 4-1958

• Decision Date: 12 June 1959
• Docket Number: No. 4-1958,No. 29746,4-1958,29746
• Citation: 239 Ind. 548,159 N.E.2d 563
• Parties: Merrill KING, Bernice King, on behalf of themselves and all other owners of land appealing from and remonstrating against annexation of the territory annexed to the City of Bloomington as provided by general Ordinance, whose names are too numerous to recite in this caption but whose names are subscribed to Exhibit A attached to the complaint and made a part thereof, Appellants, v. CITY OF BLOOMINGTON, Appellee.
• Court: Indiana Supreme Court

Page 563

159 N.E.2d 563

239 Ind. 548

Merrill KING, Bernice King, on behalf of themselves and all

other owners of land appealing from and remonstrating

against annexation of the territory annexed to the City of

Bloomington as provided by general Ordinance No. 4-1958,

whose names are too numerous to recite in this caption but

whose names are subscribed to Exhibit A attached to the

complaint and made a part thereof, Appellants, v. CITY OF BLOOMINGTON, Appellee.

No. 29746.

Supreme Court of Indiana.

June 12, 1959.

Hickam & Hickam, Spencer, Robert F. McCrea, Bloomington, for appellants.

Leroy Baker, Frank A. Barnhart, Bloomington, Gustav H. Dongus, Indianapolis (Evens & Baker, Bloomington, Fansler, Fauvre, Dongus & Chambers, Indianapolis, of counsel), for appellee.

ARTERBURN, Judge.

This appeal is the result of a remonstrance filed against the annexation of certain territory by the City of Bloomington, Indiana under Burns' § 48-702, Acts 1955, ch. 269, sec. 3, p. 720.

We are first concerned here with a motion to dismiss the appeal by the appellee, City of Bloomington, under Rule 2-6 of this court, the pertinent part of which reads as follows:

'In the title to the assignment of errors all parties to the judgment seeking relief by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interests of the appellants shall be named as appellees. * * * Failure properly to name parties will not be treated as jurisdictional. * * *'

The parties anmed in the assignment of errors are set forth as follows:

'Merrill King, Bernice King, on behalf of themselves and all other owners of land appealing from and remonstrating against annexation of the territory annexed to the City of Bloomington as provided by general Ordinance No. 4-1958, whose names are too numerous to recite in this caption but whose names are subscribed to Exhibit A attached to the complaint and made a part thereof,

Appellants,

v.

City of Bloomington,

Appellee.'

In this case it appears there are 2478 signers to the remonstrance and that the territory sought to be annexed covers an area of approximately 11 to 12 square miles. It is situations such as this the legis lature had in mind when it enacted Burns' 1946 Repl. § 2-220:

'Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; * * * when the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.'

This court, in Board of Com'rs of Vanderburgh County v. Sanders, 1940, 218 Ind. 43, 30 N.E.2d 713, 715, 131 A.L.R. 1048, gave a common-sense and reasonable construction to a similar situation where 3,922 parties were interested in the action:

'It is contended that this appeal should be dismissed for the reason that all parties to the judgment were not named in the assignment of error. The plaintiff, Ora Sanders, was the only party named as appellee in the assignment of error. See Rule 7, of the Supreme and Appellate Courts, § 2-3212 and § 2-3213, Burns' 1933, § 476 and § 477, Badwin's [sic] 1934.

'By the provisions of § 2-220, burns' 1933, § 35, Baldwin's 1934, supra, it is provided that in a class action, 'one or more persons may sue or defend for the benefit of the whole.' If by the terms of the statute one or more may sue or defend for the benefit of the whole in the trial court, likewise such person or persons may prosecute or defend the action on appeal. The statute must be construed as permitting one or more who begin the action for the benefit of the whole, or who defend for the benefit of the whole, as authorizing such person or persons to so prosecute or defend throughout all the stages of such action including an appeal to this court. So it seems to us that under the statute appellee, Ora Sanders, as representative of the class for whose benefit this action was instituted, is the only necessary party to be named as appellee on appeal.

'We therefore conclude that the appeal should not be dismissed.'

The appellees urge upon us the case of Baugher v. Hall, Ind.1958, 147 N.E.2d 591, where we dismissed an appeal which did not name the appellee (a receiver) in the assignment of errors, the title of action being stated as, 'In the Matter of the Receivership of the Joyner Corporation'. That case is to be distinguished, since the appellant was not prosecuting an appeal on behalf of himself and others similarly situated. Also in that case the receiver, who was the only adversary party, was not named at all in the assignment of errors. The implications of the rule stated in that case should not be extended any further than the facts therein require. It is too technical and harsh a rule to be enlarged upon.

It has been said many times that an assignment of errors on appeal is comparable to the complaint in the lower court. There is no more reason for being technical with reference to the parties named in the assignment of errors than in the complaint or petition in the court below. If the parties are named sufficiently in a complaint for a trial court to take jurisdiction, hear and determine the issues, then we in this court on appeal should be able to do the same. Rockey v. Hershman, 1923, 193 Ind. 168, 138 N.E. 339; 5 C.J.S. Appeal and Error § 1245, p. 83.

Looking at the petition or complaint filed in this case below we find that it was entitled as follows:

'Merrill King, Bernice King, on behalf of themselves and all other owners of land appealing from and remonstrating against annexation of the territory annexed to the City of Bloomington as provided by general Ordinance No. 4-1958, whose names are too numerous to recite in this caption but whose names are subscribed to Exhibit A attached hereto and made a part hereof,

Plaintiffs,

v.

City of Bloomington,

'Defendant.'

A summons was likewise issued with the plaintiffs and defendant named as in the complaint. If there was any defect in the parties named in the complaint in the court below, it should have been properly raised there. If the appellee desired the 2478 signers to be named in the caption of the complaint and thought it was entitled to such formality, the time for insisting thereon was in the trial court. Burns' 1946 Repl. § 2-1011.

This court said in Thomas v. Wood, 1878, 61 Ind. 132:

'The point is made for the first time in this court, that there was and is a defect of parties in this action, which 'renders it impossible for the court to settle the rights of all the parties interested.' Such an objection, conceding its existence, can not be made for the first time in this court in such a manner as to render it available for any purpose to the objecting party. If the defect of parties is apparent on the face of the complaint, it may be reached by a demurrer, for the fourth statutory cause: but, if it is not apparent upon the face of the complaint, the objection may be taken by answer. If such objection is not taken either by demurrer or answer, it is expressly provided, in section 54 of the practice act, that 'the defendant shall be deemed to have waived the same.' 2 R.S.1876, p. 59.'

For the reasons stated, it is too late here for the appellee to raise any question as to a defect or failure to properly name parties in the assignment of errors, which could have been called to the attention of the parties in the trial court below, as revealed by the complaint filed therein. The motion to dismiss is overruled.

We come now to a consideration of the merits of the case:

On February 4, 1958 the Common Council of the City of Bloomington enacted an annexation Ordinance, No. 4-(1958) which enlarged the boundary lines of the City of Bloomington from approximately 3.87 square miles to 15.64 square miles. On March 13th a group of 2478 persons (appellants), claiming to constitute a majority of the owners of land in the territory sought to be annexed and claiming that they were owners of more than 75% in assessed valuation of the real estate in that territory, filed their remonstrance and complaint against the proposed annexation in the Monroe Circuit Court. Burns' 1950 Repl. § 48-702.

After the filing of the remonstrances (on April 15th) the Common Council repealed Ordinance No. 4-(1958) and the next day the City filed a verified 'motion to dismiss without prejudice' the appeal then pending in the Circuit Court.

To the motion to dismiss, the appellants (remonstrators) filed written objections, which stated among other things that there were 3336, separate parcels of land belonging to owners, (other than the City of Bloomington and Indiana University), in the proposed area to be annexed, and that there were more than 2478 signers to the remonstrances. The objections further alleged:

'* * * In the procurement of such signatures, and in filing their complaint and appeal herein, plaintiffs were put to a large expense in the employment of counsel, the search of pertinent records and the compiling, organization and analysis of the data disclosed by such search, and plaintiffs were required to and did devote hundreds of hours of the time of many of these plaintiffs to circulate their remonstrance and procure signatures thereon. Plaintiffs in good faith believe and therefore assert that the signers of such remonstrance constitute a substantial majority of the owners of land in the annexed territory and include the owners of more than seventy-five (75%) percent in assessed value of the real estate in the annexed territory, and thereby plaintiffs have complied with all requirements of § 48-702, Burns' Pocket Supplement to confer jurisdiction upon this court so as to assure plaintiffs of a hearing before the court upon the merits of the annexation.'

Appellants also alleged that they, at great expense, were preparing for trial on the merits; that it would be manifestly unjust...