Paul v. Walkerton Woodlawn Cemetery Ass'n

• Decision Date: 20 February 1933
• Docket Number: No. 25687.,25687.
• Parties: PAUL et al. v. WALKERTON WOODLAWN CEMETERY ASS'N.
• Court: Indiana Supreme Court

204 Ind. 693

184 N.E. 537

PAUL et al.

v.WALKERTON WOODLAWN CEMETERY ASS'N.

No. 25687.

Supreme Court of Indiana, in Banc.

Feb. 20, 1933.

Appeal from La Porte Circuit Court; John C. Rickets, Judge.

Action by the Walkerton Woodlawn Cemetery Association against William S. Paul and others. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

See, also (Ind. Sup.) 184 N. E. 542.

W. J. Reed, of Knox, for appellants.

Roy Sheneman, of Walkerton, for appellee.

MYERS, Judge.

Appellee, an incorporated cemetery, by its board of directors, acting upon the alleged authority of section 4560, Burns' 1926; § 4, Acts 1875, c. 11, p. 23, and in compliance with its bylaws, assessed 103 lots belonging to appellants, which lots were within the boundaries and a part of the cemetery grounds dedicated to the burial of the dead. This action was instituted to collect that assessment aggregating $309. Demurrer to the complaint for want of facts overruled. Answer in three paragraphs; the first a general denial, and demurrer for want of facts sustained to the second and third. Trial, special finding of facts, and conclusions of law. Motion for a new trial overruled, and judgment in favor of appellee for $309, from which judgment appellants prosecuted this appeal. Errors assigned, and not waived, are: Action of the court in overruling the demurrer to the complaint, and in overruling the motion for a new trial.

This case was commenced in the St. Joseph superior court and, on change of venue, sent to the La Porte circuit court. Appellee first insists that no question is presented on the demurrer to the complaint for the reason that neither the complaint or the demurrer thereto, filed in the St. Joseph superior court, are sufficiently identified or authenticated to make them a part of the record of the La Porte circuit court. This omission was corrected by the clerk below in obedience to a writ of certiorari issued by this court.

Appellee next insists that the præcipe fails to call for the complaint and the demurrer, and that it is not copied into appellants' brief, and for these reasons any question on the demurrer to the complaint is not presented. Although the præcipe, as well as the clerk's certificate, are a part of the record on appeal, it is not essential that either be incorporated into appellants' brief. The burden is always on the appellant to present a transcript or record disclosing prejudicial error; otherwise the appeal must fail. Bennett v. State, 188 Ind. 380, 123 N. E. 797.

Appellee's asserted omission of the præcipe in appellants' brief should have been supported by a copy of the præcipe in its brief, as we will presume, in the absence of a showing to the contrary, that the clerk has complied with the præcipe, and the transcript is correctly brought to our attention by appellants' brief. However, in view of appellee's attack on the præcipe, submitted to prevent a consideration of the demurrer to the complaint, we are justified in invoking the rule of searching the record to affirm the judgment. State ex rel. v. Whetsel, Trustee, 197 Ind. 278, 288, 149 N. E. 369, 150 N. E. 766;Hogston v. Bell, 185 Ind. 536, 552, 112 N. E. 883.

This we have done, and find that the præcipe requested the clerk to “prepare a transcript of the record of the proceedings in the above entitled cause and to include therein all papers and pleadings filed and on file, the order book entries, etc.” This præcipe sufficiently meets appellee's challenge without giving it a liberal construction to which it would be entitled. In Powell v. Bunger, 91 Ind. 64, 72, it was said: “This court will not be prevented by informality or omission in the appellants' written directions for a transcript, from looking into any portion of the record before it, as may become necessary to a proper decision of the cause.” See, also, Sherrin v. Flinn, 155 Ind. 422, 425, 58 N. E. 549.

Appellants, in their brief, have furnished us a copy of the complaint and the demurrer. Three of the seven specifications in the memorandum attached to the demurrer, and the only ones not waived may be included in the statement that the statute under which appellee was organized and is assuming to operate is unconstitutional, and that the complaint fails to allege that the lots on which plaintiff seeks to collect the assessment are occupied or used for the burial of the dead.

As to the constitutional question, the demurrer did not call the trial court's attention to any constitutional provision claimed to be violated by the statute. Since it is the function of this court to decide only such questions of law on appeal as were presented to the trial court, we would not therefore be justified in assuming that the constitutional question as here submitted for decision rested upon the same constitutional provision in the trial court. The uncertainty of the treatment of this question below and here is somewhat emphasized by appellants' brief, wherein, under the head of “Points and Authorities,” they assert that the statute upon which appellee relies is unconstitutional for the reason that it “seeks to take property without due process of law” (our italics), citing article 1, § 12, Indiana Constitution. This section provides that “every man, for injury done him in his person, property or reputation, shall have remedy by due course of law.” (Our italics.) Both the Fifth and Fourteenth Amendments to our Federal Constitution have a “due process of law” clause, and conceding that the phrase “due process of law” and the phrase “due course of law” may be treated as synonymous, it is possible that appellants may have relied upon either the Fifth or Fourteenth Amendments in support of their demurrer below, and in this court, section 12, supra. Inasmuch as the Fifth Amendment places restrictions on the powers of the national government only, it would follow that the statute here in question was not forbidden by that amendment. While the Fourteenth Amendment and section 12 of our Bill of Rights each inhibit the state from depriving a person of his property without due process of law, or, as our State Constitution puts it, “due course of law,” yet the general assertion in a memorandum to a demurrer that a statute is unconstitutional does not meet the rule of particularity in pleading so as to require the trial court to seek out the particular constitutional provision the pleader has in mind. As said in Simmons v. Simmons, 186 Ind. 575, 577, 116 N. E. 49, 50, “Courts will not search the Constitutions to find authority to overthrow a legislative enactment.” See, also, Luttrell v. State (Ind. Sup.) 183 N. E. 318. For the reasons stated, the constitutional question here sought to be presented is not before us.

Notwithstanding the record at bar does not disclose the constitutional provision urged upon the trial court in support of appellants' position here that chapter 11, Acts 1875, p. 23, the first section of which was amended, Acts 1879, c. 13, p. 84, is unconstitutional and in view of possible further litigation between these parties unless we give some expression on this question, we would briefly suggest that as we are at present advised, neither the enactment as a whole or the section thereof upon which the assessments in the instant case were made is within the inhibition of the “due process of law” clause of the Fourteenth Amendment, or the “due course of law” clause in section 12 of our Bill of Rights. The enactment, the validity of which appellants would question and under which appellee was incorporated, provides that it shall be managed by a board of directors, stating the manner of their election and defining “their duties, powers and obligations,” among which they are “empowered to assess, levy and collect” assessments on the lots of the cemetery of which they have charge “for the purpose of improving, maintaining, protecting and enlarging its boundaries, beautifying its grounds, or for enhancing its convenience, as is in their judgement desirable. Such assessments may be collected by suit or sale of lots, on which assessments have been made and are not paid, according to the regulations made and ordered by said directors: Provided, however, That the total amount of any such assessments, made in any one year, shall not exceed twenty per cent. of the value of the lot or lots assessed, at the time of making such assessment.”

From the complaint it appears that the assessments in question were made for the purpose of improving, protecting, and beautifying the grounds of the cemetery; that the board of directors of appellee had theretofore adopted regulations in the form of by-laws for the collection of lot assessments, to which there is no claim of unreasonableness; that these regulations in the instant case were followed; that the assessment on each lot was less than 20 per cent. of its value. Appellants' lots, when assessed, were a part of an addition and included in the incorporated territory of the cemetery under the jurisdiction, supervision, and management of appellee. Without repeating the expressed statutory duties and powers and objects to be attained by the board...