173 S.W.2d 981 | Ky. Ct. App. | 1943
Reversing.
On May 21, 1942, the City of Louisville enacted an ordinance proposing to annex three subdivisions on the south side and adjoining the present boundary of the City, known as the MacArthur Fields Subdivision, the Southlawn Subdivision and the Meadows Subdivision. The MacArthur Fields and the Meadows Subdivision lie on one side of Third Street and the Southlawn Subdivision lies on the other. More than 75 per cent of the residents and freeholders of the Southlawn Subdivision sought to resist the annexation of that territory. They designated the appellants, R.R. Sullivan, George Cummings and Russell Jordan as a Remonstrating Committee of residents and freeholders opposing annexation to the City of Louisville. These individuals were given powers of attorney to act for those opposing the annexation. Within the 30 day period provided in KRS
The special demurrer was sustained on the ground that the Remonstrating Committee was not legally empowered to sue for the residents of the Southlawn Subdivision. The first part of KRS
"(1) Within thirty days after the enactment of an ordinance proposing to annex unincorporated territory to a first-class city, or to reduce its limits, one or more residents or freeholders of the territory proposed to be annexed or stricken off may file a petition *70 in the circuit court of the county, setting forth the reasons why the territory or any part of it should not be annexed, or why the limits should not be reduced. * * *"
The appellants insist they had authority as a Committee to sue on behalf of the residents and freeholders of the Southlawn Subdivision, and advance several arguments in support of that view. The City relies upon the provisions of Sections 18 and 21 of the Civil Code of Practice. Section 18 directs that every action must be prosecuted in the name of the real party in interest, except as provided in Section 21. It is insisted that the Remonstrating Committee does not come within the exceptions provided under Section 21, and, since it is neither a resident nor a freeholder, it can not sue. While there appeared to be sound reasons in support of the contention of the appellants to the effect that the Committee can maintain the action, we deem it unnecessary to pass upon that question, since we are of the opinion that the three named appellants are actually real parties in interest. Taking the allegations of the petition as true, they are freeholders of the Southlawn Subdivision. They, along with other freeholders who comprise more than 75 per cent of the persons living in the Subdivision, are protesting the annexation. The Statute directs that one or more residents or freeholders may file a petition. Since they state they are freeholders of the territory sought to be annexed, we think it would be placing too strict a construction upon the question at issue to say that they had not shown their right to maintain the action.
The general demurrer seems to have been sustained upon the ground that the court had no jurisdiction of the subject of the action, because the protest was directed to the annexation of only a part of the territory. Reference to the last part of KRS
"Another objection is that the court did not consider the questions of annexing the territory lying on different sides of the town as separate propositions. There would be some force in this objection, *71 if the territory sought to be annexed upon the different sides of the town lay in separate, disconnected parcels; but, as the case stands, it is sufficient to say that the statute providing for the annexation does not permit the residents of the territory sought to be annexed to split it up into parcels for the purpose of resisting annexation of one or more of such parcels."
Brandenburg, a town of the sixth class, was attempting to annex territory to the east, north and south of its limits under a statute worded substantially the same as KRS
A motion was made to transfer the cause to the ordinary docket. It should have been sustained, in view of the provisions of KRS
A further question relates to the ruling of the chancellor in denying the appellants the right to file an amended petition as individuals after the 30-day period prescribed in the Statute for the filing of a petition had expired. Obviously, it is unnecessary to discuss this question, in view of our ruling on the sustaining of the special demurrer.
Wherefore, the judgment is reversed, with directions to set it aside, and for proceedings consistent with this opinion.