Pitzer v. City of East Chicago

• Decision Date: 30 November 1943
• Docket Number: No. 27914.,27914.
• Citation: 51 N.E.2d 479,222 Ind. 93
• Parties: PITZER et al. v. CITY OF EAST CHICAGO et al.
• Court: Indiana Supreme Court

222 Ind. 93

51 N.E.2d 479

PITZER et al.

v.CITY OF EAST CHICAGO et al.

No. 27914.

Supreme Court of Indiana.

Nov. 30, 1943.

Action by Lewis Pitzer and others against the City of East Chicago and others, for a declaratory judgment. Judgment for defendants, and plaintiffs appeal. Transferred from the Appellate Court under Burns' Ann.St. § 4-218.

Affirmed.Appeal from Lake Circuit Court; J. Fred Bingham, Special Judge.

Crumpacker & Friedrich and J. E. Darlington, both of Hammond, for appellants.

Loyd J. Cohen and Allen P. Twyman, both of East Chicago, for appellees.

FANSLER, Chief Justice.

Appellants were the plaintiffs below. It appears from their complaint that on December 31, 1938, the Board of Public Works and Safety of East Chicago passed a resolution appointing them as members of the city fire department, effective January 1, 1939, that they reported for duty at the appointed time, and that a new city administration took office on January 1st and refused to recognize them as firemen upon the ground that the retiring board had no authority to appoint them. On January 16, 1939, they began this action, seeking a declaratory judgment ‘determining all their rights, status and legal relations.’ After issues were made and evidence heard, an order and judgment were entered to the effect that the court:

‘* * * finds that a declaratory judgment or decree if rendered or entered in this cause would not terminate the uncertainty or controversy giving rise to this proceeding.

‘The court therefore * * * now refuses to render or enter a declaratory judgment herein * * *.’

There was judgment that the plaintiffs take nothing and that they pay the costs. There was a motion for a new trial and errors assigned which present the appellants' contention that the court's refusal to render or enter a declaratory judgment was erroneous.

Section 3-1106, Burns' 1933, § 443, Baldwin's 1934, provides: ‘The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.’ If the plaintiffs were right in their contention that they had been legally appointed as members of the city fire force, and that they were entitled to be recognized as such, and that on January 1st, and continuously thereafter, the city government had refused to so recognize them and place them on the pay roll and pay them as such, a cause of action justifying executory affirmative relief had accrued to them prior to the beginning of this action for a declaratory judgment. They might have...