Marion County Board of Zoning Appeals v. Sheffer & Clark Inc. , 139 Ind. App. 451 ( 1966 )

On Petition to Remand

Bierly, C.J.

— Appellee, Sheffer and Clark, Inc., filed in this cause, on July 26, 1965, an instrument entitled “PETI-TITION TO REMAND FOR SETTING ASIDE AND DISMISSING ACTION,” which petition, omitting formal parts, is as follows, to-wit:

“Comes now the appellee, by its counsel of record, and represents to the Court as follows:

“1. That since the date judgment was entered in the Marion Superior Court, Room No. 3, there have been substantial changes in the circumstances upon which the judgment was entered, to-wit:

“ (A). That the appellee no longer desires the variance of use for the construction and erection of a mobile home park, service station, and commercial building for the site upon which the variance was granted.

“(B). That the appellee represents that it does not desire to further participate in this appeal.

“(C). That appellee has lost considerable money in its attempt to develop the property in question and has had to sell the same and therefor [e] no longer has an interest in the property or a variance therefor.

“(D). That appellee therefor [e] desires that this matter be remanded to the Marion Superior Court, Room No. 3, for the purposes of setting aside its judgment entered and to dismiss said matter.

“2. That should this petition be denied, appellee requests that it be given thirty (30) days, from the date of denial, within which to file its Answer-Brief.

“WHEREFORE, the appellee prays of this Court that this matter be remanded to the Marion Superior Court, Room No. 3, for the above purposes.”

Thereafter, on the 27th day of July, 1965 appellants filed objections to appellee’s petition to remand, which was followed, on the 29th day of July, 1965, by appellee’s filing a reply to appellants’ objections thereto.

This cause was tried in the Marion Superior Court, Room 3, and resulted in a judgment in favor of .Sheffer and Clark, Inc., appellee in this appeal.

Appellants submitted their transcript and assignment of errors on the 17th day of May, 1965 in this court. This was followed by the filing of appellants’ brief on the 15th day of June, 1965.

Appellee, in this particular case, had been awarded, by the Marion Superior Court, Room No. 3, of Marion County, Indiana, a “variance of use for the construction and erection of a mobile home park, service station, and commercial building for the site upon which the variance was granted.” From this judgment appellants perfected their appeal.

Appellee, in its petition to remand for setting aside judgment awarded in its favor and asking dismissal of this appeal, asserts that since the date of the judgment there have been substantial changes in the “circumstances upon which the judgment was entered” and that any further need is lacking for the variance granted by the judgment; that appellee has lost a great amount of money in attempting to develop the property and has been forced to sell the same, with the result that appellee has no interest in the property or in a variance therefor.

Appellants, in their objections to the granting of appellee’s petition to remand and dismiss this appeal, assert that neither existing law nor Supreme Court Rules authorized such procedure ; that there can be no reliance that the trial court will set aside its judgment nor has appellee any power to set it aside; that they question the jurisdiction of the trial court to set aside the judgment. Appellants further assert that the only available procedure in setting aside the judgment is for reversal of the same by this court.

Appellee, in its reply to appellants’ objections to its petition to remand, cites a recent decision in the case of Boller et al. v. Terhune et al. (1963), 134 Ind. App. 231, 187 N. E. 2d 370, as being based on substantially the same factual situation as presented in the case at bar. Appellee, in his reply, further states that after the briefs had been filed by the appellee and the appellants, “the appellee and appellants then filed their motion that the cause be remanded to the [Grant] Circuit Court for the purpose of setting aside its judgment and to enter a judgment denying a special use permit.”

Since appellee urges the applicability of the Boiler case, supra, as controlling in the case at bar, we quote verbatim the motion in said Cause No. 19534, omitting formal parts, as follows:

“MOTION

“COME NOW the Appellants and the Appellees, by their counsel of record and represent to the Court as follows:

“(1) That since the date judgment was entered by the Grant Circuit Court of Indiana, there have been substantial changes in the conditions upon which the judgment was entered, to-wit:

“(a) That the Appellees are no longer interested in the special use permit for the site upon which the permit was granted.

“(b) That the Appellees represent that they do not desire to further participate in this appeal.

“(c) That the Appellants and the Appellees have agreed among themselves that this matter shall be remanded to the Grant Circuit Court of Indiana for the purposes of setting aside its judgment entered and to enter a judgment denying said special use permit.”

After consideration of appellee’s petition to remand for setting aside the judgment of the trial court, the objections thereto by appellants, and the reply by appellee to appellants’ objections, it appears, and we find, that since the date of the judgment by the Marion Superior Court, Room 3, there have arisen substantial changes in the circumstances, conditions and the position of the parties from those existing at the time of the granting of the variance.

We further find that appellants objected to appellee’s motion to remand, but that, in the Boiler case, supra, appellants joined appellees in their motion to remand and, hence, the Boiler case, supra, lacks applicability in a determination of the issue raised relative to appellee’s motion to remand.

We further find that appellants have substantial rights in this appeal which cannot be denied them without their consent other than by proper judicial process.

We are of the opinion that appellee’s petition to remand should be denied.

Petition to remand denied.