Smith v. Incorporated Towm of Culver, 20448

• Decision Date: 14 March 1967
• Docket Number: No. 20448,No. 1,20448,1
• Citation: 224 N.E.2d 59,140 Ind.App. 508
• Parties: A. Coke SMITH et al., Appellants, v. The INCORPORATED TOWN OF CULVER, Indiana et al., Appellees
• Court: Indiana Appellate Court

Page 59

224 N.E.2d 59

140 Ind.App. 508

A. Coke SMITH et al., Appellants, v. The INCORPORATED TOWN OF CULVER, Indiana et al., Appellees.

No. 20448.

Appellate Court of Indiana, Division No. 1.

March 14, 1967.

Opinion Superseded 234 N.E.2d 494.

Chipman & Chipman, Plymouth, for appellants.

Stevens, Wampler, Travis & Feagler, Plymouth, for appellees.

CARSON, Judge.

The action below arose out of the adoption of an ordinance by the Town of Culver, Indiana, annexing certain territory adjacent to the town. There was an appeal to the Marshall Circuit Court and from the judgment of the Marshall Circuit Court upholding the ordinance and directing the annexation this appeal was taken. The Judge below after considering the ordinance and hearing the evidence, 1) described the real estate to be annexed, 2) found that it should be annexed to the Town of Culver, Indiana, 3) directed that a certified copy of the judgment be delivered to the Clerk of the Town of Culver. The appellants' filed their motion for a special findings of fact and conclusions of law and their motion for a new trial. The court in compliance with Supreme Court Rule 1-7C and pursuant to the provisions of Section 48-715, Ind.Stat.Ann. (1963), made the following special findings of fact:

'1. The annexation by the Incorporated Town of Culver, Indiana, of the territory described in Ordinance No. 175 of the said Incorporated Town of Culver, Indiana, is in the best interests of said Town and of the said territory described in said Ordinance No. 175.

'2. The area described in Ordinance No. 175 of the Incorporated Town of Culver, Indiana, is urban in character and is an economic and social part of the Incorporated Town of Culver, Indiana.

'3. The terms and conditions set forth in the said Ordinance No. 175 of the Incorporated Town of Culver, Indiana, are fair and just.

'4. The Incorporated Town of Culver, Indiana, is financially able to provide municipal services to the area described in Ordinance No. 175 of the Incorporated Town of Culver, Indiana, within the reasonably near future.

'5. The major portion of the area described in Ordinance No. 175 of the Incorporated Town of Culver, Indiana, is developed, and the remainder of said area is undeveloped; that that portion of said area which is undeveloped is needed for development of the Incorporated Town of Culver, Indiana, in the reasonably near future.

'6. The territory described in Ordinance No. 175 of the Incorporated Town of Culver, Indiana, is contiguous to the Incorporated Town of Culver, Indiana, and the lines of the annexation as described in said Ordinance are so drawn as to form a compact area abutting the Incorporated Town of Culver, Indiana.'

Upon such facts the court stated the following conclusion of law:

'1. The law is with defendant, the Incorporated Town of Culver, Indiana.'

The remonstrators then filed their motion for a new trial specifying three grounds; first, that the decision of the court was not sustained by sufficient evidence; second, that the decision of the court is contrary to law; and third, errors of law occurring at the trial. The only error at law which the appellants urge is that dealing with the questioning of Ruth Lennon, the Clerk-Treasurer of the Town.

We shall dispose of Points 1 & 3 of the motion for a new trial first, and then proceed to Point 2.

Point 1 would require us to weigh the evidence, and the evidence being in conflict comes under the rule repeatedly stated by this court that we will not substitute our judgment for that of the trial court and will not weigh the evidence.

Point 3 was not properly saved in that the objection was made after the question was answered and was not properly followed up by a motion to strike the answer from the record and then state the objection sufficiently broad as to present the exact error relied upon.

Point 2 presents the only question for our consideration in this appeal. An assignment that the decision of the court is contrary to law...