Peru Cemetery Co. v. Mount Hope Cemetery of Peru

• Decision Date: 08 April 1946
• Docket Number: 28157.
• Citation: 65 N.E.2d 849,224 Ind. 202
• Parties: PERU CEMETERY CO., Inc., et al. v. MOUNT HOPE CEMETERY OF PERU.
• Court: Indiana Supreme Court

65 N.E.2d 849

224 Ind. 202

PERU CEMETERY CO., Inc., et al. v. MOUNT HOPE CEMETERY OF PERU.

No. 28157.

Supreme Court of Indiana

April 8, 1946

Appeal from Miami Circuit Court; Robert E. Thompson Special judge.

Russell J. Wildman, of Peru, for appellants.

Hurd J. Hurst and Albert H. Cole, both of Peru, for appellee.

RICHMAN Judge.

This is an appeal from an interlocutory order appointing appraisers in an action under the general eminent domain statute, § 3-1701 et seq., Burns' 1933, to condemn real estate for an addition to appellee's cemetery. Objections filed pursuant to § 3-1705 presented issues of fact upon which evidence was heard. The questions for our consideration arise on the evidence.

It is contended first that the action was not brought in appellee's true name. The evidence discloses that the incorporators in their petition to the Board of Commissioners, filed September 6, 1881, requested incorporation in the name of Mount Hope Cemetery of Peru which was accordingly done. In various documents filed about that time and later in 1912, when there was a merger with another cemetery corporation, the corporation was referred to as Mount Hope Cemetery using the words 'of Peru' or merely 'Peru' in a descriptive sense, not as part of the name. After the merger minutes and by-laws were prepared in the name of Mount Hope Cemetery Association. Apparently these various designations were used indiscriminately. Appellants say that the corporation had a right under Chapter 6 of the Acts of 1883 to change its name and that the use of the name 'Mount Hope Cemetery Association' in the minutes and other corporate records indicate that the name was so changed. That statute contemplates the recording of the change of name and there is no evidence that any such record was authorized or made. We are of the opinion that on the evidence the trial court was warranted in concluding that the action was brought in appellee's true corporate name.

Two other questions are raised which may be considered together. The evidence shows that for several years prior to 1945 appellee contemplated the acquisition of a 13 acre tract which adjoined appellee's cemetery. The tract was part of a farm of 150 acres owned by the individual appellants, with whom appellee's officers had several conversations looking to the purchase of the 13 acres. No agreement was reached. A notice was published in the Peru Republican, calling a meeting of appellee's stockholders to be held on April 11, 1945, 'for the purpose of arranging for acquiring additional land * * *.' The meeting was held on that date and purchase or condemnation authorized. On the same day articles of incorporation of appellant Peru Cemetery Company, Incorporated, naming the individual appellants as incorporators, were filed with the Recorder of Miami County. These articles show that the corporation was organized for profit and to conduct a public cemetery business with principal office in Peru, but otherwise contain nothing to indicate where the cemetery was to be located. On the same day was recorded a deed from the individual appellants to the corporate appellant, describing the 13 acres. The fact that the grantee was a cemetery corporation was the only indication in the deed that the land was to be used for cemetery purposes. At that time there were oats growing thereon which were harvested in the following summer. It had not been otherwise used as late as November, 1945, at the time of the hearing resulting in the appointment of appraisers.

Soon after the stockholders' meeting an attorney was employed by appellee and called upon Charles B. Soames, who said that he was the president of appellant corporation and by whom the attorney was greeted with the words, 'I was expecting you.' In the conversation ensuing appellee offered $175 an acre, which Soames refused, putting a value of $7,000 an acre on the land. In the conference the attorney obtained a memorandum made by appellants, dated May 4, 1945 showing two sets of tabulations as to the amount per acre that would be received net, after the payment of income taxes, at prices of $300, $500 and $1,000 per acre. Under the first table is a note that it is 'Based on normal income plus other income for past 3 years. If other income increases, so does tax.' Necessarily these figures were made with reference to the income of the...