Opinion
No. 19,676.
Filed June 5, 1963. Rehearing denied August 8, 1963. Transfer denied February 1, 1965.
1. WRIT OF CERTIORARI — Statutory Requirement of Notice to Adverse Parties. — Upon filing petition for writ of certiorari, notice must be issued and served by sheriff of the county upon all adverse parties as shown by the appeal record in the office of the board of zoning appeals. (Burns' Ann. Stat., Section 53-915) p. 629.
2. PARTIES — Necessary Parties to Appeal from Granting of Variance. — Parties who received grant of variance are both necessary and indispensable party defendants and judgment taken by trial court without these indispensable parties is void. p. 629.
3. PARTIES — Failure to Comply with Statutory Requirements as to Parties as Jurisdictional. — Failure to comply with statute stating requirements of notice to necessary parties is jurisdictional and therefore, trial court had no jurisdiction of the parties in such case. p. 630.
4. COURTS — Power of Court to Dismiss Action for Lack of Jurisdiction. — The court has inherent power to dismiss actions in which it has no jurisdiction. p. 630.
From the Marion Circuit Court, John L. Niblack, Judge.
This is the second appeal from the court's action in dismissing cause following this court's opinion previously rendered in Noblitt v. Metropolitan Plan Comm., etc., 131 Ind. App. 497, 172 N.E.2d 580.
Affirmed. By the First Division.
John H. Baldwin, of Indianapolis, for appellants.
William F. LeMond, of Indianapolis, for appellees, Sun Oil Company, Florence E. Dawson, and Emily S. Maxwell. William B. Patrick, of Indianapolis, for appellee, Metropolitan Board of Zoning Appeals of Marion County.
This and Noblitt et al. v. The Metropolitan Plan Commission of Marion County, Indiana, Board of Zoning Appeals, et al. (No. 19680) are companion cases.
This is a second appeal, and arises from the trial court's action in dismissing the cause following our opinion previously rendered. See Noblitt v. Metropolitan Plan Comm., etc. (1961), 131 Ind. App. 497, 172 N.E.2d 580.
The original appeal was from a judgment of the Marion Circuit Court which sustained the granting of a variance by the Metropolitan Plan Commission of Marion County, Indiana, and the Board of Zoning Appeals. The appellants had petitioned the Circuit Court for a writ of certiorari pursuant to the statutory authority granted by Burns' §§ 53-974 and 53-975, 1962 Cumulative Pocket Supplement.
Burns' § 53-975, supra, specifically states the procedure to be followed on the filing of a petition for a writ of certiorari, and clearly directs the petitioner to cause a "notice to 1. be issued and served by the sheriff of the county upon the adverse party or parties, if any, as shown by the record of the appeal in the office of the board of zoning appeals." (Emphasis added.)
Our original opinion in following the cases of Kupfer et al. v. Board of Zoning Appeals (1959), 130 Ind. App. 55, 162 N.E.2d 110, and McArdle v. Board of Zoning Appeals, etc. 2. (1960), 131 Ind. App. 5, 167 N.E.2d 608, held that the parties who received the grant of a variance are both necessary and indispensable and must be named as party defendants, and since the judgment below had been made by the trial court without the indispensable parties, the judgment was void.
As our Supreme Court stated in Ballman v. Duffecy (1952), 230 Ind. 220, 102 N.E.2d 646, a failure to comply with the statute is jurisdictional and therefore the trial court did 3. not have jurisdiction of the parties or of the particular case. This rule has been recently reiterated by this court in the case of Molton et al. v. Board of Zoning Appeals of the City of Hammond, etc. et al. (1963), 136 Ind. App. 607, 190 N.E.2d 199.
The court has the inherent power to dismiss those actions in which it does not have jurisdiction. State ex rel. Terminix Co. of Ind. v. Fulton C.C. (1956), 235 Ind. 218, 132 N.E.2d 4. 707; Cook et al. v. Herring et al. (1959), 130 Ind. App. 72, 162 N.E.2d 108.
The appellants having failed to comply with the jurisdictional requirements of the statute, the only proper course of action for the trial court was to dismiss the same.
Affirmed.
Carson, P.J., and Clements and Cooper, JJ., concur.
NOTE. — Reported in 190 N.E.2d 664.