Larson v. Town of Wynnedale

• Decision Date: 18 January 1962
• Docket Number: No. 19493,No. 1,19493,1
• Citation: 133 Ind.App. 337,179 N.E.2d 578
• Parties: Oscar P. LARSON and Lucy I. Larson, Appellants, v. TOWN OF WYNNEDALE, and E. E. Mrtin, A. R. Moses, and O. F. Wadleigh, Trustees of the Town of Wynnedale and Members of the Town Board, Appellees
• Court: Indiana Appellate Court

Page 578

179 N.E.2d 578

133 Ind.App. 337

Oscar P. LARSON and Lucy I. Larson, Appellants, v. TOWN OF WYNNEDALE, and E. E. Mrtin, A. R. Moses, and O. F.

Wadleigh, Trustees of the Town of Wynnedale and

Members of the Town Board, Appellees.

No. 19493.

Appellate Court of Indiana, Division No. 1.

Jan. 18, 1962.

Bamberger & Feibleman, Charles B. Feibleman, Gene E. Wilkins, Indianapolis, for appellants.

Robert E. Coates, Harold H. Bredell, Lawrence McTurnan, Coates, Hatfield &amp Calkins, Bredell, Cooper & Martin, Indianapolis, for appellees

COOPER, Judge.

This is an appeal from an action brought by the appellants in the Marion Circuit Court seeking an injunction against the appellees herein. The record reveals that after the issues were closed, trial was before the court without a jury. After submission, the trial court found against the appellants, and rendered the following judgment:

'The Court having had this Cause under advisement, and being duly advised, finds for the Defendants upon the pleadings and the evidence, that Plaintiffs take Nothing by their Complaint. Injunction is denied. Costs are taxed against the Plaintiffs.'

Thereafter within the proper time appellants filed their motion for new trial charging, in substance, that the decision is not sustained by sufficient evidence and also is contrary to law. The trial court overruled the motion for a new trial and this appeal followed.

The assigned error before this court, omitting the caption, formal parts and signatures, is as follows:

'(1) The Court erred in overruling Appellants' Motion for a New Trial.

'(2) The Court erred in overruling Appellants' Demurrer to Paragraph II of Appellees' Answer.

'(3) The Court erred in overruling Appellants' Demurrer to Paragraph III of Appellees' Answer.'

First we will discuss specifications #2 and #3 of the assigned error. These items present nothing for our consideration for the appellants' failure to comply with Rule 2-17(d) of our Supreme Court in that the record reveals the memorandum of the appellants in support of their demurrer, comprising nine pages of the record, is not included, or contained in the appellants' brief and are, therefore, waived. Because of the omission of said memorandum, we cannot determine the basis of the demurrer without searching the record.

It is the general rule of law that the appellants' brief must be prepared so that all questions can be determined by the reviewing court from an examination of the briefs without having to examine or search the record (see Witte v. Witte et al. (1953) 123 Ind.App. 644, 113 N.E.2d 166) and an appellant who complains of the rulings upon a demurrer, waives any error by a failure to set forth said demurrer, including the memorandum in support thereof. See Kelly v. Rihm (1952) 122 Ind.App. 524, 105 N.E.2d 181.

We next come to the assigned error of the overruling of the appellants' motion for a new trial containing two specifications. As we have heretofore pointed out, the first specification being, 'The decision of the trial court is not sustained by sufficient evidence', does not present any question for our consideration, as it was a decision against the appellant, who had the burden of proof; however, the rule is that a negative decision may be attacked as being contrary to law. See Wilson, Admx. v. Rollings (1938) 214 Ind. 155, 14 N.E.2d 905; see also Hinds, Executor Etc. v. McNair, et al. (1955) 235 Ind. 34, at 41, 129 N.E.2d 553.

We find in the case of Hinds, Executor Etc. v. McNair et al., supra, in discussing said general rule, Judge Arterburn stated:

'We have repeatedly held that such assignment of error presents no question for review where the verdict is negative. Capes v. Barger, 1953, 123 Ind.App. 212, 109 N.E.2d 725; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474. However, a negative verdict may be attacked under the second specification, namely, the verdict of the jury is contrary to law. Wilson [Admx.] v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.

'If the undisputed evidence entitles the one who has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.

"It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion that the decision of the trial court will be set aside on the ground that it is contrary to law.'

'Pokraka v. Lummus Co., 1952, 230 Ind. 523, 532, 104 N.E.2d 669.'

It appears that the appellants brought this action seeking an injunction against the Town of Wynnedale and members of its Town Board.

The record also reveals that the Town of Wynnedale is an incorporated town within Marion County, State of Indiana, and that the members of the Town Board, at a regularly called meeting, passed a resolution vacating a portion of Knollton Road, a public highway passing through said corporate limits; said resolution vacated a certain portion of said highway within the town limits, and, thereafter, constructed a barrier the entire width of said vacated portion of said highway. The appellants are not residents of said town, but own real estate adjacent to said town.

The ultimate and final question now before us is whether the Town Board of Wynnedale had the authority and jurisdiction to vacate said portion of said Knollton Road, a public highway, within the town limits.

It is the appellants' contention that the acts of the Town Board of the Town of Wynnedale, in vacating and obstructing a strip across the width of said Knollton Road, being a public highway running through said Town, and erecting a barricade thereon, was unlawful because the Town of Wynnedale or the Town Board had no jurisdiction or authority to obstruct a county highway dedicated, opened and used by the public for many years both prior and subsequent to the incorporation of said town.

It has long been the general rule of law that the primary control of public streets in a city or town in Indiana is vested in the state and any such powers or control over the same as municipalities may have are only such as have been delegated to them by the legislature. See Farmers' & Merchants Co-op Tel. Co. v. Boswell Tel. Co. (1918), 187 Ind. 371, 119 N.E. 513...