Maish v. Town of Schererville

Decision Date19 December 1985
Docket NumberNo. 3-785A195,3-785A195
PartiesStephen M. MAISH, Defendant-Appellant, v. TOWN OF SCHERERVILLE, Plaintiff-Appellee.
CourtIndiana Appellate Court

Maish & Mysliwy, Merrillville, for defendant-appellant.

David M. Austgen, John M. O'Drobinak, P.C., Crown Point, for plaintiff-appellee.

GARRARD, Judge.

Maish was charged and in a court trial convicted of violating a speeding ordinance of the Town of Schererville. The town failed to introduce the ordinance into evidence at the trial. Maish moved for judgment on the evidence for this failure of proof, but his motion was denied. He appeals.

In Indiana the courts may not take judicial notice of municipal ordinances. They are subject to proof. Matter of Public Law No. 305 and Public Law No. 309 (1975), 263 Ind. 506, 334 N.E.2d 659; Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; Enyart v. Blacketor (1976), 168 Ind.App. 214, 342 N.E.2d 654.

The town seeks to avoid the impact of a long line of authority to this effect by urging that those decisions have no application where a municipal corporation is seeking to enforce one of its ordinances. We disagree.

The town relies upon IC 34-4-32-1(b). That section of the statute provides:

"A proceeding to enforce an ordinance shall be brought in the name of the municipal corporation. The municipal corporation need not prove that it or the ordinance is valid unless validity is controverted by affidavit."

The reliance is misplaced. The statute relieves the municipality from the necessity of proving that the municipal corporation was validly created or that an ordinance was validly enacted in the absence of a verified contention controverting such validity. The municipality must nevertheless establish the provisions of the ordinance. This it must do by the introduction of competent evidence or the stipulation of the parties. To hold otherwise would simply establish the constitutional invalidity of this section under Matter of Public Law No. 305, supra. See Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; cf. Viccaro v. City of Ft. Wayne (1983), Ind.App., 449 N.E.2d 1161.

There was a failure of proof. The judgment is reversed and the case is remanded to the trial court with instructions to enter judgment for the defendant.

Reversed and remanded.

STATON, P.J., and HOFFMAN, J., concur.

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4 cases
  • Filter Specialists, Inc. v. Brooks
    • United States
    • Indiana Appellate Court
    • 28 Diciembre 2007
    ...("It is well-settled law in Indiana that ordinances cannot be the subject of judicial notice."); Maish v. Town of Schererville, 486 N.E.2d 1, 1 (Ind.Ct.App.1985) ("In Indiana the courts may not take judicial notice of municipal ordinances. They are subject to proof."). However, the cases ar......
  • City of Hammond v. Doody, 45A03-8904-CV-144
    • United States
    • Indiana Appellate Court
    • 26 Abril 1990
    ...are regarded as areas outside the knowledge of the supreme and appellate courts and are always subject to proof. Maish v. Town of Schererville (1985), Ind.App., 486 N.E.2d 1; State ex rel. Rose v. Hoffman (1949), 227 Ind. 256, 85 N.E.2d Whether Harolyn Goldenberg was a law clerk for the tri......
  • Oriental Health Spa v. City of Fort Wayne
    • United States
    • Indiana Appellate Court
    • 10 Agosto 1988
    ...stated, Indiana courts cannot take judicial notice of municipal ordinances. Thus, they are subject to proof. Maish v. Town of Schererville (1985), Ind.App., 486 N.E.2d 1, 1, and cases cited. We hold this to be true in the administrative arena as well as in actions originating at the trial R......
  • Gonon v. State
    • United States
    • Indiana Appellate Court
    • 2 Octubre 1991
    ...193; Oriental Health Spa v. City of Fort Wayne (1988), Ind.App., 526 N.E.2d 1019, 1021. This court's decision in Maish v. Town of Schererville (1985), Ind.App., 486 N.E.2d 1, directly exemplifies this position. Maish was adjudged to have violated a municipal speeding ordinance. As did Gonon......

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