Wilcox v. City of Tipton

• Citation: 42 N.E. 614,143 Ind. 241
• Decision Date: 09 January 1896
• Docket Number: 17,444
• Parties: Wilcox v. The City of Tipton et al
• Court: Supreme Court of Indiana

42 N.E. 614

143 Ind. 241

Wilcox v. The City of Tipton et al

No. 17,444

Supreme Court of Indiana

January 9, 1896

From the Tipton Circuit Court.

The judgment is affirmed.

Oglebay & Oglebay and Fippen & Purvis, for appellant.

Beauchamp & Mount, for appellees.

OPINION

Hackney, J.

This was a suit by the appellant against the appellees, the city of Tipton and its officers, to enjoin the enforcement of a decree of the Tipton Circuit Court annexing certain territory to said city. The complaint alleges certain proceedings before, and an order of annexation by, the board of commissioners of Tipton county; that said order was void for the reasons that no map of the territory was filed with the petition; that no accurate description by metes and bounds of the territory was presented to the board and accompanied by a plat, and that thirty days' notice by publication containing a description of the territory, was not given of the intended petition. It is further alleged that Harrison A Woodruff and James E. Roberts, respectively, owned lands sought to be annexed by said proceeding and the order of said board; that they filed with, and to the approval of, the county auditor, within thirty days from the rendition of said order, an appeal bond, and in all things, as provided by law appealed from said order to the Tipton Circuit Court; that in said court the city of Tipton filed an amended petition, in which it omitted all of the property of said Woodruff and Roberts originally sought, and by the board ordered, to be annexed; that thereupon the circuit court approved the petition, made an order of annexation as to the lands included in the amended petition, and directed a certificate of the order to said auditor and to the recorder of the county. Upon the theory that the amended petition was an original proceeding requiring the action of the city and of the board of commissioners before the circuit court could acquire jurisdiction, it was alleged in detail that none of the steps preliminary to the jurisdiction of the circuit court were taken upon the question of the annexation of the lands described in said amended petition, disconnected from the said lands of Woodruff and Roberts, from which facts, it was alleged, that the order of the circuit court was void. The complaint also alleged the appellant's ownership of a portion of the lands attempted to be annexed by the orders of the board of commissioners and of the circuit court, and that the appellees were proceeding to carry out the orders of the circuit court and to subject his property to taxation as within the corporate limits of said city. The appellees answered specially and the court overruled the appellant's demurrer to said answer. There was a trial, finding and judgment for the appellees. The errors assigned are in the overruling of said demurrer and in denying the appellant a new trial.

The answer alleged that the petition filed with the commissioners was in the words of the amended petition, omitting the lands of Woodruff and Roberts; that said petition and the amended petition were filed by order of the common council of the city of Tipton; that notice of the intended petition was published, including a description of the lands described in the petition; that the appellant was present in the court remonstrating against the proposed annexation; that the court heard evidence and inspected a map of the lands so proposed to be annexed, and granted the petition and ordered the annexation, "from which judgment of the annexation, Harrison A. Woodruff and James E. Roberts, owners of land described in said petition and included in the territory sought to be annexed by said order, did file their appeal bond and prayed an appeal to the Tipton Circuit Court, and which appeal was granted and perfected." It is alleged, substantially as alleged in the complaint, that the petition was amended in the circuit court, and that after a hearing the court ordered the annexation of the property described in the amended petition.

Two questions are discussed by the appellant's counsel in their objections to the sufficiency of the answer: First, that it is not alleged that the appellant was notified of the appeal; and, second, that the circuit court had no jurisdiction to order the annexation of territory less extensive than that for which notice was given, for which the original petition prayed, and that ordered by the board of commissioners to be annexed.

To correctly consider the force and effect of the answer, it is essential that we keep in view the theory of the complaint, for it cannot reasonably be contended that the rules of pleading require the answer to respond to a broader or different theory than that upon which the cause of action is based, as outlined by the complaint. The theory of the complaint, as we understand it, was that the order of annexation by the board of commissioners was void, first, for the want of notice of the petition as required by law; second, because a map of the territory was not filed with the petition, and, third, because the city did not present to the board an accurate description, by metes and bounds, accompanied by a plat of the territory. The first denies jurisdiction of the person, the second and third attempt to deny jurisdiction of the subject-matter. We do not stop to inquire if properly these allegations do assail the jurisdiction of the board over the subject-matter, but it may be questioned whether they do not relate to the procedure, which, as held in Stilz v. City of Indianapolis, 55 Ind. 515, should be liberally construed.

The further theory of the complaint is that the circuit court had no such jurisdiction of the subject-matter as to order the annexation of a smaller territory than that annexed by the board. As to jurisdiction of the circuit court over the person of the appellant, the complaint is silent and therefore raises no question. Having thus ascertained the theory of the complaint, we will look to the answer, not to ascertain whether it...