Luten v. Schmidt

• Citation: 88 Ind.App. 134,163 N.E. 536
• Decision Date: 30 October 1928
• Docket Number: No. 12393.,12393.
• Parties: LUTEN et al. v. SCHMIDT et al.
• Court: Court of Appeals of Indiana

88 Ind.App. 134

163 N.E. 536

LUTEN et al.

v.SCHMIDT et al.

No. 12393.

Appellate Court of Indiana, in Banc.

Oct. 30, 1928.

Appeal from Superior Court, Marion County; T. J. Moll, Judge.

Proceeding by Edith H. Luten and others for writ of certiorari, opposed by Gustave G. Schmidt and others, members of the Board of Zoning Appeals. From an adverse judgment, petitioners appeal. Appeal dismissed for want of jurisdiction.

Superseding opinion, 153 N. E. 481.

Russell T. McFall, of Indianapolis, for appellants.

J. Clyde Hoffman, of Indianapolis, for appellees.

McMAHAN, J.

The controversy involved in this appeal grew out of the granting of a building permit by the commission of buildings of the city of Indianapolis to the Beth El Temple Congregation for the erection of a Jewish temple at Thirty-Four and Ruckle streets in city of Indianapolis. Appellants being the owners of a lot adjoining that on which the temple is located, and claiming to be aggrieved by the action of the building commissioner, appealed to the board of zoning appeals. The board having decided that the building commissioner did not err in granting the permit, appellants then filed their petition in the Marion superior court for a writ of certiorari, which was issued to the board of zoning appeals, directing it to certify all the records and proceedings to the court below. Such proceedings were had in the court below as resulted in a judgment against appellants denying them any relief; hence this appeal.

The appellees named in this appeal are the individual members of the board of zoning appeals. The Beth El Temple Congregation is not a party.

Sections 10372 to 10380, Burns' 1926; chapter 225, Acts 1921; Acts 1925, c. 125, comprise what is generally known as the zoning statute. Sections 10372, 10373, and 10374 give the common council of cities authority to pass building regulations, to divide the city into zones or districts by ordinance. Provision is made for notice to the public and for the hearing of objections to the passage of such ordinance and for the amendment of such ordinance after hearing.

Section 10375 provides for the creation of a board of zoning appeals and that such board shall hear and determine appeals from, and review any order, requirement, decision, or determination made by an administrative official or board charged with the enforcement of any ordinance or regulation adopted under the act of which this section is a part.

Section 10376, Burns' 1926 (section 5, Acts 1921, p. 665), provides that any person aggrieved by any decision of the board of zoning appeals may present to the circuit or superior court a petition setting forth that such decision is illegal, in whole or in part, specifying the grounds of such illegality; that the court or judge in vacation may allow a writ of certiorari directed to the board of zoning appeals and prescribe a time within which a return must be made. The board of zoning appeals is not required to return the original papers acted upon by it. It is only required to return certified or sworn copies thereof. The return must concisely state the facts pertinent and material to show the grounds of decision appealed from and must be verified. If upon hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence thereon and may reverse or affirm, in whole or in part, or modify the decision of the board brought up for review. No cost shall be allowed or taxed against the board unless it appears that it acted with gross negligence or in bad faith in making the order appealed from.

[1] The act makes no provision for an appeal from the decision of the circuit or superior court in matters of this kind. The general rule is that in special proceedings of this kind no appeal lies to this court in the absence of a statute authorizing it. The right of appeal to the Supreme or Appellate Court is a statutory right (Gray v. Royse, 82 Ind. App. 101, 144 N. E. 854), except where expressly secured by the Constitution. Jerzakowski v. City of South Bend, 82 Ind. App. 132, 145 N. E. 520;Hall v. Kincaid, 64 Ind. App. 103, 115 N. E. 361.

[2] Since no presumption of jurisdiction attaches to appellate tribunals, the burden rests upon an appellant to bring himself within a reasonable construction of some statue authorizing an...