Maish v. Town of Schererville

Indiana Court of Appeals

Maish v. Town of Schererville

486 N.E.2d 1, 1985 Ind. App. LEXIS 3089

CourtIndiana Court of Appeals

DecidedDecember 19, 1985

Docket3-785A195

StatusPublished

Cited by6 cases

This text of 486 N.E.2d 1 (Maish v. Town of Schererville) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maish v. Town of Schererville, 486 N.E.2d 1, 1985 Ind. App. LEXIS 3089 (Ind. Ct. App. 1985).

Pincite

Opinion

GARRARD, Judge.

Maish was charged and in a court trial convicted of violating a speeding ordinance of the Town of Schererville. The town failed to introduce the ordinance into evidence at the trial. Maish moved for judgment on the evidence for this failure of proof, but his motion was denied. He appeals.

In Indiana the courts may not take judicial notice of municipal ordinances. They are subject to proof. Matter of Public Law No. 305 and Public Law No. 309 (1975), 268 Ind. 506, 334 N.E.2d 659; Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; Enyart v. Blacketor (1976), 168 Ind.App. 214, 342 N.E.2d 654.

The town seeks to avoid the impact of a long line of authority to this effect by urging that those decisions have no application where a municipal corporation is seeking to enforce one of its ordinances. We disagree,.

The town relies upon IC 34-4-82-1(b). That section of the statute provides:

"A proceeding to enforce an ordinance shall be brought in the name of the municipal corporation. The municipal corporation need not prove that it or the ordinance is valid unless validity is controverted by affidavit."

The reliance is misplaced. The statute relieves the municipality from the necessity of proving that the municipal corporation was validly created or that an ordinance was validly enacted in the absence of a verified contention controverting such validity, The municipality must nevertheless establish the provisions of the ordinance. This it must do by the introduction of competent evidence or the stipulation of the parties. To hold otherwise would simply establish the constitutional invalidity of this section under Matter of Public Law No. 305, supra. See Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; cf. Viccaro v. City of Ft. Wayne (1983), Ind.App., 449 N.E.2d 1161.

There was a failure of proof. The judgment is reversed and the case is remanded *2 to the trial court with instructions to enter judgment for the defendant.

Reversed and remanded.

STATON, P.J., and HOFFMAN, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

GARRARD, Judge.

Maish was charged and in a court trial convicted of violating a speeding ordinance of the Town of Schererville. The town failed to introduce the ordinance into evidence at the trial. Maish moved for judgment on the evidence for this failure of proof, but his motion was denied. He appeals.

In Indiana the courts may not take judicial notice of municipal ordinances. They are subject to proof. Matter of Public Law No. 305 and Public Law No. 309 (1975), 268 Ind. 506, 334 N.E.2d 659; Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; Enyart v. Blacketor (1976), 168 Ind.App. 214, 342 N.E.2d 654.

The town seeks to avoid the impact of a long line of authority to this effect by urging that those decisions have no application where a municipal corporation is seeking to enforce one of its ordinances. We disagree,.

The town relies upon IC 34-4-82-1(b). That section of the statute provides:

"A proceeding to enforce an ordinance shall be brought in the name of the municipal corporation. The municipal corporation need not prove that it or the ordinance is valid unless validity is controverted by affidavit."

The reliance is misplaced. The statute relieves the municipality from the necessity of proving that the municipal corporation was validly created or that an ordinance was validly enacted in the absence of a verified contention controverting such validity, The municipality must nevertheless establish the provisions of the ordinance. This it must do by the introduction of competent evidence or the stipulation of the parties. To hold otherwise would simply establish the constitutional invalidity of this section under Matter of Public Law No. 305, supra. See Woods v. Brown Co. Plan Comm. (1983), Ind.App., 446 N.E.2d 973; cf. Viccaro v. City of Ft. Wayne (1983), Ind.App., 449 N.E.2d 1161.

There was a failure of proof. The judgment is reversed and the case is remanded *2 to the trial court with instructions to enter judgment for the defendant.

Reversed and remanded.

STATON, P.J., and HOFFMAN, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

486 N.E.2d 1, 1985 Ind. App. LEXIS 3089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maish-v-town-of-schererville-indctapp-1985.

Opinion

Related

Cite This Page — Counsel Stack