Minne v. City of Mishawaka, 767

• Decision Date: 17 September 1968
• Docket Number: No. 767,767
• Citation: 251 Ind. 166,240 N.E.2d 56
• Parties: Paul MINNE, Louise Minne et al. and Roy L. Connor, Celia L. Connor et al., Appellants, v. The CITY OF MISHAWAKA, Indiana, a Municipal Corporation, Margaret H. Prickett, as Mayor of the City of Mishawaka, Indiana et al., Appellees. S 48.
• Court: Indiana Supreme Court

Page 56

240 N.E.2d 56

251 Ind. 166

Paul MINNE, Louise Minne et al. and Roy L. Connor, Celia L Connor et al., Appellants, v. The CITY OF MISHAWAKA, Indiana, a Municipal Corporation Margaret H. Prickett, as Mayor of the City of Mishawaka, Indiana et al., Appellees.

No. 767 S 48.

Supreme Court of Indiana.

Sept. 17, 1968.

Paul J. Schwertley, South Bend, for appellants.

R. Wyatt Mick, Jr., Mishawaka, Joseph A. Roper, South Bend, for appellees, Chappeau, Roper, McInerny & Farabaugh, South Bend, of counsel.

HUNTER, Judge.

This is an appeal from a civil action brought by appellee, the City of Mishawaka, Indiana, a municipal corporation. The action was instituted by a complaint for a declaratory judgment seeking a ruling by the trial court declaring the relative rights of the appellees and appellants under a prior judgment theretofore entered by the same court.

The central question involved in the controversy from which the prior judgment resulted was whether certain annexation ordinances that had been adopted by the Common Council of the City of Mishawaka, Indiana, were valid. Judgment was entered in that action and, subsequently, this action was filed seeking a declaration of the legal effect of that first judgment. This Court's jurisdiction to hear this appeal is grounded in Ind.Ann.Stat. § 4--214 (Repl. 1968), which grants the Supreme Court of Indiana jurisdiction to hear direct appeals in cases involving, inter alia, the validity of a municipal ordinance.

The facts alleged in the complaint for declaratory judgment are as follows:

At the inception of this controversy the Common Council of the City of Mishawaka adopted two annexation ordinances. Thereafter, a group headed by appellants Paul and Louise Minne filed a remonstrance and complaint against the City of Mishawaka and certain elected officials thereof contending that under the provisions of Ind.Ann.Stat. § 48--702, the annexation provided for in one of the ordinances should not take place. A group headed by appellants Roy and Celia Connor filed a similar remonstrance and complaint regarding the second annexation ordinance. These two causes were consolidated for trial in St. Joseph County Superior Court No. 2 and on December 18, 1963, said court entered decrees holding that certain portions of Ind.Ann.Stat. § 48--702, under which Minne and Connor groups were proceeding, were unconstitutional.

Ind.Ann.Stat. § 48--702 directs the trial court in which a remonstrance and complaint regarding an annexation ordinance is filed to give judgment on the propriety of the ordinance in question by applying six determinants. Those six determinants would have the court declare the propriety of the ordinance by deciding whether:

'(a) The annexation is in the best interests of the city and of the territory sought to be annexed;

(b) The area is urban in character, being an economic and social part of the annexting city;

(c) The terms and conditions set forth in the ordinance are fair and just;

(d) The city is financially able to provide municipal services to the annexed area within the reasonably near future;

(e) The area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future;

(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality;'

The trial court's decree of December 18, 1963 held that parts (b) and (f) of the foregoing determinants were satisfied, but that, under the Indiana Constitution, a judicial officer is without power to rule upon parts (a), (c), (d) and (e) of the above determinants. The trial court was apparently of the opinion that these latter four determinants encompassed areas of legislative prerogative and could not be ruled upon by a judicial officer under Article 3, § 1 of the Constitution of Indiana.

After stating such holdings, however, the decree stated no conclusion as to the effect of the court's holding upon the validity or invalidity of the annexation ordinances in question. No appeal was taken from the original judgment.

Subsequently, after the time for appeal had passed, the present action was filed in the same court, seeking a declaration of the rights and status of the parties under the aforementioned decree. In response to the complaint of appellees seeking a declaratory judgment, the appellants filed a demurrer, which was subsequently overruled.

Thereafter, a stipulation as to the facts was agreed upon by the parties, and the matter was submitted for decision upon the basis of that agreed statement of the facts. No other evidence was introduced, and appellants, defendants below, never filed an answer to the appellees' complaint.

Notwithstanding the failure of the appellants to file an answer, however, the trial court proceeded to consider the submitted stipulations, and entered judgment in favor of appellees. This was the proper procedure to follow in view of longstanding Indiana case law to the effect that where a defendant fails to answer a complaint and no objection or motion for default is raised by the plaintiff, the complaint will be considered to have been denied. Hedges v. Mehring (1917), 65 Ind.App. 586, 115 N.E. 433; Kirkpatrick v. Alexander, Executor (1877), 60 Ind. 95.

After examining the stipulation as to the facts, the trial court entered his declaratory judgment in favor of plaintiffs-appellees, holding that Ind.Ann.Stat. § 48--702 was not rendered void in its entirety by the court's prior ruling that four of the six determinants set out in that statute could not constitutionally be considered by a judicial officer. The court held further, that its prior finding that the remaining two determinants were satisfied required a declaration that the lands described in each of the two annexation ordinances in question were thereafter a part of the civil city of Mishawaka.

There are two assignments of error which appellants attempt to place before this Court for decision:

1. Error by the trial court in the overruling of appellants' demurrer to appellees' complaint.

2. Error by the trial court in its determination that Ind.Ann.Stat. §§ 48--701 and 48--702 are not unconstitutional in their entirety.

The appellees have filed with this Court a Motion to Dismiss this appeal, or in the alternative, to affirm the judgment below, due to the alleged failure of appellants to file a proper, complete transcript and proper briefs.

Concerning the first assignment of error, appellees claim that since appellants' demurrer and memorandum in support thereof are not set out in their brief, appellants have failed to present any question to this...