Leach v. City of Evansville

• Decision Date: 02 April 1937
• Docket Number: 26768.
• Citation: 7 N.E.2d 207,211 Ind. 444
• Parties: LEACH v. CITY OF EVANSVILLE. DeVOS et al. v. SAME. HESCH et al. v. SAME.
• Court: Indiana Supreme Court

7 N.E.2d 207

211 Ind. 444

LEACH v. CITY OF EVANSVILLE.

DeVOS et al. v. SAME.

HESCH et al. v. SAME.

No. 26768.

Supreme Court of Indiana

April 2, 1937

Appeal from Superior Court, Vanderburgh County; Benj. E. Buente judge.

Charles M. La Follette, Wm. F. Little, and F. Wendell Lensing, all of Evansville, for appellants.

Louis L. Roberts, Leo Warren, and Phelps F. Darby, all of Evansville, for appellee.

FANSLER Judge.

Appellants instituted three independent actions, constituting what, in the statutes, is called an appeal from certain awards or assessments of damages made by the board of public works and safety of the City of Evansville in the condemnation of certain lands. The cases were consolidated. The final award of the board was made on the 10th day of May 1935. The complaints were filed on the 10th day of June 1935, the 9th being Sunday. On motion of appellee, the actions were dismissed on the ground that they were not brought within the time provided by statute.

The only question presented by the appeal is whether the action was governed, as to the time in which it could be brought, by chapter 129 of the Acts of 1905 (Acts 1905, § 101, p. 284, Burns' Ann.St.1933, § 48-2005, Baldwin's Ind.St.1934, §§ 11644-11653), or chapter 245 of the Acts of 1933 (Acts 1933, § 1, p. 1109, Burns' Ann.st.1933, §§ 48-4501 to 48-4509, Baldwin's Ind.St.1934, §§ 11576-11584).

The first statute in question concerns the appropriation of property by cities. It provides that any person aggrieved by a decision of the board may appeal to the circuit court within twenty days, by filing a complaint against the city. The title of the act of 1933 reads as follows: 'An act concerning procedure on appeals from action and decision of boards of public works and board of park commissioners and common councils of cities, and from boards of trustees of towns, and from any other body or official of any city or town where applicable, in all matters where such appeals are now or may hereafter be allowed by law; repealing all laws in conflict herewith, and declaring an emergency.' The first section provides: 'All appeals now allowed, or which may hereafter be allowed by law from any action or decision of the board of public works or the board of park commissioners of any city, or the common council of such cities wherein it performs the functions of either or both such boards, or of any other board, shall be taken by the party appealing, filing in the circuit or superior court of the county wherein such city is located, an original complaint against such city as defendant. Such complaint on appeal shall be filed within thirty (30) days from the date of the action or decision complained of.'

Appellants assert that this statute was intended to furnish, and does furnish, procedure, including a limitation of time, for filing actions questioning the decisions of the various bodies referred to; that the word 'all' does not permit of exceptions being read into the statute. Citizens' Trust & Sav. Bank v. Fletcher American Co et al. (1934) 207 Ind. 328, 190 N.E. 868, 192 N.E. 451, 99 A.L.R. 1474, 1476; Pittsburgh, etc., R. Co. v. Lightheiser (1904) 163 Ind. 247, 71 N.E. 218, 660. Appellee takes the...