Town of Argos v. Ritz Craft Realty, Inc.

Decision Date21 June 1968
Docket NumberNo. 1167,1167
Citation238 N.E.2d 14,250 Ind. 562
PartiesThe TOWN OF ARGOS et al., Appellants, v. RITZ CRAFT REALTY, INC., et al., Appellees. S 128.
CourtIndiana Supreme Court

Bruce R. Bancroft, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for appellants.

Eugene N. Chipman, Chipman, Chipman & Rakestraw, Plymouth, for appellees.

HUNTER, Judge.

This is an appeal from a declaratory judgment in favor of appellees which was rendered upon appellees' motion for summary judgment. Appellant filed a cross-motion for summary judgment which was denied.

This Court's jurisdiction of this appeal arises under Ind.Ann.Stat. § 4--214 (1968 Replacement), since the central issue in this case is the validity or invalidity of a certain annexation ordinance heretofore adopted by the Board of Trustees of the Town of Argos, Indiana, a municipal corporation.

The relevant facts are not in dispute. On Junuary 7, 1964, Ordinance No. 233 was duly enacted by the Board of Trustees of the Town of Argos, Indiana. By this ordinance, the Town of Argos sought to annex certain areas adjacent to the town boundaries. Some of the owners of property in the annexed area are the appellees in this action, having successfully contested the validity of the said ordinance in the court below.

The only newspaper published in the Town of Argos during all times relevant to this litigation was The Argos Reflector, a weekly newspaper of general circulation which is printed and published in the English Language and had been so published for at least five (5) years prior to January 7, 1964, and has been accepted during that period as mailable second class matter by the United States Post Office.

Notice of the passage of Ordinance No. 233 of the Town of Argos was published in The Argos Reflector for two (2) consecutive weeks on January 16, 1964, and on January 23, 1964. On May 27, 1966, the Board of Trustees of the Town of Argos caused the text of the annexation ordinance to be recorded in the office of the Recorder of Marshall County, Indiana.

The appellees remonstrated against the annexation ordinance and this action followed. After appellees' motion for summary judgment was granted, appellant Town of Argos filed a motion for new trial alleging that the decision of the court below is contrary to law and that the decision of the court effected an absurd result. The motion for new trial was overruled and this appeal followed.

As a matter of general interest, it should be pointed out that due to a recent amendment to Rule 2--6 of the Rules of the Supreme Court of Indiana, a motion for new trial is no longer the proper vehicle for raising error claimed by reason of the entry of summary judgment. Under that amendment, however, the motion in this case is acceptable. The amendment to Rule 2--6, in the form of two added paragraphs, became effective April 22, 1968 and reads as follows:

'Provided, however, a motion for a new trial shall not be appropriate for raising error claimed by reason of the entering of a summary judgment. The sustaining of a motion for a summary judgment and the granting of same may be assigned and specified separately in the assignment of errors for consideration on appeal.

'Provided further, however, that in all cases prior to the effective date of this amendment, where a motion for a new trial has been filed following a summary judgment, the parties to said action shall have the same time within which to file a transcript and assignment of errors for appeal as in those cases where a motion for a new trial is proper, and the alleged error is set forth and specified in the motion for a new trial considered on appeal.'

Upon consideration of appellant's allegation that the decision of the court below is contrary to law, we are of the opinion that appellant is correct and must prevail in this action. Analysis and construction of three statutory provisions leads us inevitably to this result.

In 1905, the statute which is now codified as Ind.Ann.Stat. § 48--701 (1963 Replacement) was enacted in its original form. This statute was amended in 1955, but such amendments did not affect any aspect of the outcome of this case. In pertinent part, § 48--701 presently reads:

'Corporate boundaries--Annexation of lands.--The common council shall have power, by ordinance, to declare and define the entire corporate boundaries of such city, and such ordinances, properly certified, shall be conclusive evidence, in any court or proceeding, of the boundaries of such city, except as provided in the next section. Such ordinances defining the entire city boundary may include contiguous territory, whether platted or not, not previously annexed, and may include such terms and conditions, as hereinafter defined, as may be deemed just and reasonable by said common council, and such annexation shall be binding, unless such newly annexed territory shall be within the limits of another town or city, in which case there may be an appeal, as hereinafter provided. Said common council may also, by separate ordinance, not purporting to define the entire boundaries of such city annex contiguous territory, whether platted or not, to such city, and may include such terms and conditions, as hereinafter defined, as may be deemed just and reasonable by said common council, and a certified copy of such ordinances shall be conclusive evidence in any proceeding that the territory therein described was properly annexed and constitutes a part of such city, except as provided in the following sections. Immediately after the passage of every such ordinance as provided for in this section, the same shall be published for at least two (2) consecutive weeks in a daily newspaper of general circulation published in such city.' (Emphasis added).

The provision in § 48--701, supra, requiring publication in a daily newspaper has been a part of this statute since its original enactment in 1905. Ind.Ann.Stat. § 48--712 et seq. (Replacement, 1963) make the provisions of § 48--701 applicable to town annexations as well as city annexations.

In 1927, however, a general act was passed by the General Assembly entitled: 'An Act concerning legal advertising and the publication of legal notices, reports and ordinances, and other information, prescribing the rates to be paid therefor, the time and manner of publication, and prescribing penalties for failure to comply with the provisions thereof.' Acts of 1927, Chapter 96.

Section 7 of the Act, now codified as Ind.Ann.Stat. § 49--707, was...

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3 cases
  • Dague v. Piper Aircraft Corp.
    • United States
    • U.S. District Court — Northern District of Indiana
    • May 27, 1980
    ...County Department of Public Welfare v. Ball Memorial Hospital Ass'n., 253 Ind. 179, 252 N.E.2d 424 (1969); Town of Argos v. Ritz Craft Realty, Inc., 250 Ind. 562, 238 N.E.2d 14 (1968); and Combs v. Cook, 238 Ind. 392, 151 N.E.2d 144 The issues involved with regard to the application of this......
  • Pickens' Estate v. Pickens
    • United States
    • Indiana Supreme Court
    • October 20, 1970
    ...of the act admit of it by a reasonable construction. Marks v. State (1942), 220 Ind. 9, 40 N.E.2d 108.' Town of Argos v. Ritz Craft Realty, Inc. (1968), 250 Ind. 562, 238 N.E.2d 14, 17. Having reviewed the nature of the action created by the Legislature under the Wrongful Death statute and ......
  • City of Lawrence v. Milan, 668S94
    • United States
    • Indiana Supreme Court
    • April 11, 1969
    ...(2) consecutive weeks in a daily newspaper of general circulation published in such city.' In the case of Town of Argos v. Ritz Craft Realty Inc. (1968), Ind., 238 N.E.2d 14, 16, this court in an exhaustive review of all the statutes dealing with publication of notices as related to municip......

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