Goodson v. Y.M.C.A. Board of Trustees

251 N.E.2d 858, 145 Ind. App. 561, 1969 Ind. App. LEXIS 419

• Court: Indiana Court of Appeals
• Decided: November 3, 1969
• Docket: No. 1268A214
• Status: Published

Opinions

Cooper, J.

This is an appeal from the Greene Circuit Court wherein the Court granted a motion for summary judgment for the appellees on their Petition to Vacate a Portion of an alley.

It appears from the record that this matter originated in the Knox Circuit Court by the appellees filing therein their said petition which prayed the Court to order the vacation of a certain public alley in the city of Vincennes, Indiana. The appellant herein did not own any land abutting or adjacent to the alley in question. He appeared merely as a member of the general public, filed a remonstrance to the appellees’ petition, and subsequently an application for change of venue from the county. After the matter had been venued to Greene County, and a change of judge effected in that county, the matter was submitted on the appellees’ motion for summary judgment and affidavit in support thereof, and the affidavit of the remonstrator-appellant in opposition thereto.

On April 10,1968, the Court entered its summary judgment in favor of the appellees, vacating the public alley in Vincennes, Indiana, as sought by the petitioners.

The appellant herein first sought relief from the judgment by filing in the Supreme Court of Indiana, a Petition for Writ of Prohibition and Writ of Mandate. The Supreme Court declined to issue such a writ, as not being the proper remedy, and directed the appellant to file his appeal in this Court.

After the matter was fully briefed, the appellees filed herein on April 25, 1969, their Supplemental Answer Brief, which is verified by one of the attorneys for the appellees. The Supplemental Brief alleges that the matter in controversy is now moot for the following reasons:

“(1) That all of the appellees herein (who were the owners of all of the property abutting the alley in question) have sold and conveyed their real estate adjacent to said public alley to the Penner-Ring Company of Los Angeles, California.

“ (2) At the time the appellees sold their said real estate the judgment of the Greene Circuit Court was in full force and effect and required no further action of that Court to terminate the litigation.

“ (3) No supersedeas bond or stay of execution had been sought or obtained by appellant to prevent the enforcement of the judgment of the Greene Circuit Court.

“ (4) The Penner-Ring Company has entered into a contract with the United States for the erection of a post office building on the real estate formerly belonging to the appellees and on and across that part of the alley ordered vacated by the Greene Circuit Court, and that said post office building is substantially completed.

Our Supreme Court has recently held that where the issues have become moot, it is the duty of the parties to place such matters before the Court by proper petitions, motions or .challenges by verified filings. Carl L. Snider et al. v. Mt. Vernon Hancock School Building Corporation et al. (1968), 250 Ind. 10, 234 N. E. 2d 632. The appellees herein, having filed an affidavit verifying the truth of the matters and facts set forth in the supplemental answer brief have complied with this duty.

The appellant has not controverted nor. challenged these verified statements.

The existence of an actual controversy is necessary as an essential requisite to appellate jurisdiction. An appeal which presents only a moot question, the decision of which cannot have any practical effect, will be dismissed. See: Wiltrout, Ind. Pr. Vol. 3, Sec. 2129, p. 20, and cases cited.

Since the appellant Goodson did not own any land abutting or adjacent to the alley vacated, he had no real interest in the matter of the vacation of the alley. The parties having the real interest have all sold their property and no longer have any interest in the cause. It thus appearing that this matter is moot, the cause must be dismissed. Wiltrout, Ind. Pr. Vol. 3, supra.

We wish to note in passing, that had this appeal not been dismissed because the question presented was moot, we would have been required to affirm the judgment of the trial court because of the failure of the appellant to comply with the requirements of Rule 2-5 of the Rules of the Supreme Court of Indiana in preparing the transcript. The transcript is defective in each of the following particulars: (1) The transcript is not securely bound. It is fastened at the top with a metal fastener and enclosed inside a manila filing folder; (2) the lines of each page of the transcript are not numbered; (3) each page of the transcript is not numbered; and (4) the appellant has failed to make marginal notes on each page of the transcript.

In addition, the pages of the record containing the pleadings have been duplicated by some type of photographic process. Many of these pages have turned dark and the matter appearing on these pages cannot be read.

The Rules of the Supreme Court are binding on this Court and the litigants alike, and the rules cannot be disregarded. It is the duty of the appellant to prepare the transcript in compliance with the requirements of Rule 2-5. Where, as here, the appellant has not made at least substantial compliance with the rule in the preparation of the transcript, the judgment below will be affirmed. See: Wiltrout, Ind. Pr. Vol. 3, Sec. 2342, pp. 167 to 173, and Sec. 2526, pp. 294 to 296.

Appeal dismissed. Costs v. Appellant.

Lowdermilk, P.J., and Carson, J., concur; Sullivan, J., dissents with opinion.