Berry v. City of Huntsville
| Citation | 47 Ala.App. 587,259 So.2d 269 |
| Decision Date | 24 November 1971 |
| Docket Number | 8 Div. 46 |
| Parties | Wayman B. BERRY and Kathryn A. Berry v. CITY OF HUNTSVILLE, a Municipal Corporation. |
| Court | Alabama Court of Civil Appeals |
Watts, Salmon, Roberts & Stephens, Huntsville, for appellants.
Morring, Giles, Willisson, Jefferson & Weir, Huntsville, for appellee.
On rehearing, the original opinion in this case is withdrawn and the following is substituted therefor as the opinion of the Court.
The appeal here results from a voluntary non-suit taken in the trial court pursuant to the provisions of Title 7, Section 819, Code of Alabama 1940, as Recompiled 1958.
The appellants had taken a statutory appeal to the Circuit Court of Madison County from a final assessment made by the City of Huntsville for the installation of a sanitary sewer contiguous to their property, and during the course of the trial of the appeal, had moved for a non-suit which was granted. The City of Huntsville had imposed the public improvement assessment against appellants according to the authority reposed in municipalities by Title 37, Section 515, Code of Alabama 1940, as Recompiled 1958.
The transcript of the proceedings had before the Council of the City of Huntsville as set out in the record of this case shows that Improvement Ordinance No. 64--81 was adopted by the Council on March 26, 1964. The ordinance authorized the placing of a sewer line through a subdivision of said city wherein was located appellants' property.
After a notice of the proposed assessment was published, a protest meeting was held on April 21, 1964.
There was a petition filed with the Council, signed by 80% Of the affected property owners objecting to the proposed sewer work, mainly on the ground that the sewer system was not needed at that time.
Thereafter a contract was awarded on May 28, 1964 for the construction of the sewer lines.
Final assessment against appellants' property was entered on January 13, 1966 in the amount of $609.56, and the transcript reflects that no objection, either written or oral, was made to the final assessment that was made against each parcel of property affected by the sewer improvement project.
Declaration of appeal to the Circuit Court was filed on February 2, 1966, and a transcript of the proceedings before the Council relative to Ordinance 64--81 was filed in said court and served the purpose of a complaint. See Cox v. City of Birmingham, 21 Ala.App. 341, 108 So. 622.
There was a motion by appellants to have certain portions of the transcript stricken. The motion was overruled; whereupon the City amended the transcript and appellants refiled their motion to strike. That motion was also overruled. Appellants then demurred to the transcript, and the demurrer was overruled. An answer was filed which contained fifteen pleas. Demurrers were filed to the pleas, with demurrers to pleas 1, 2, 4 and 13 being overruled and the remainder being sustained. There followed a motion to dismiss the whole appeal, and it was overruled.
At the conclusion of the testimony of the witness Paul Byrge, who was the first witness for the City, appellants moved for a non-suit.
The order granting the non-suit recited the various rulings of the trial court which induced the request for the non-suit, and they are as follows:
1. The trial court's statement to the jury that the question of cost was not an issue.
2. Adverse rulings to requests for further answers to interrogatories propounded to the City.
3. Adverse rulings by the trial court during the interrogation of the witness Paul Byrge whereby appellants were trying to develop the details of the overall cost of the sewer project and the apportionment of that cost to putting the sewer in place contiguous to appellants' property.
4. Overruling the appellants' motion to strike portions of the transcript of the Council's proceedings.
5. Overruling appellants' objection to admission of certain portions of that transcript.
From the order granting the non-suit, appellants have appealed to this court.
In ascertaining what issues are before us for decision, we would point out that only those rulings of the trial court which made it necessary for appellants to suffer a non-suit may be reviewed on appeal and are the only rulings that may be made the proper subject of assignments of error. Wartensleben v. Haithcock, 80 Ala. 565, 1 So. 38; and Taylor v. Bass, 279 Ala. 518, 187 So.2d 560.
We have paraphrased above the rulings of the trial court which were listed in the order of non-suit as being the rulings which induced the non-suit; and these rulings of the trial court are the only rulings that can be assigned as error in this case for the reason that inclusion in the order of non-suit makes them exclusive of all other rulings not so included. Calvert Fire Ins. Co. v. Maddox, 38 Ala.App. 194, 82 So.2d 277; and Almon v. Commission of Education of Cullman County, 265 Ala. 489, 92 So.2d 35.
The appeal here is from the judgment of non-suit, which said judgment recited the rulings that induced the non-suit, and is not an appeal from a non-suit suffered because of the cumulative effect of several rulings on the pleadings, although there were several assignments of error based on rulings on the pleadings. The rulings on the pleadings were not recited in the order of non-suit, and inasmuch as our review is limited to said recitals, the rulings on the pleadings, as assignments of error, are not before us for review.
The Supreme Court has said that an appeal from a non-suit is not intended to authorize a review of all the trial court's rulings made during a trial without the trial terminating in a final judgment. To do so would allow a premature clean-up job by the appellate courts of a lawsuit. The statute did not intend such a result. Only those rulings causing the non-suit are subject to review, and, in the case before us, review is further limited to those rulings set out in the order of non-suit.
Since the rulings on the pleadings are not reviewable, assignments of error 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 based on the rulings will not be considered.
Assignments of error 2, 3, 4, 21, 30, 31 and 32 were not argued and are deemed waived. Rule 9, Supreme Court Rules.
Our review of this case will be confined to two issues:
1. Is cost of the public improvement an issue to be considered by the Circuit Court on appeal from a final assessment for such improvement where no objection was made by the appellants to the final assessment? This question is embodied in assignments of error 24, 25, 26, 27, 28 and 29.
2. Are the minutes of the City Council meeting or any part thereof subject to being stricken from the transcript where said transcript is the complaint on appeal to the Circuit Court and also is to be considered prima facie evidence of the validity of the assessment? This question is based on assignments of error 1, 17, 18, 19, 20, 22 and 23.
The appellants contend that the issue before the Circuit Court involved not only the question of whether the assessment equaled the increased value of the property due to the special benefits derived from the improvement, but also whether the assessment was in excess of the cost of said improvement.
Consequently, we must determine if cost is available as an issue in this case, especially where there was no protest made to the final assessment from which the appeal was taken to the Circuit Court.
We are aware that under Alabama practice the issues are usually framed by the pleadings; but we are also cognizant of Title 37, Section 550, Code of Alabama 1940, as Recompiled 1958, which dispenses with formal pleadings in this type of proceeding and authorizes the court to hear the case on the record made before the City Council, but with the stipulation that the court hear all objections of the property owner to the assessment and the amount thereof.
In support of their contention that cost of the improvement was as much an issue in the Circuit Court as was the issue of increased value, the appellants state that Section 223 of the Alabama Constitution of 1901, Title 37, Section 513, Code of Alabama 1940, as Recompiled 1958, and Ordinance No. 64--81, prohibit the assessment from exceeding the cost.
It is true that the assessment cannot exceed the costs of the improvement project. Cox v. City of Birmingham, supra; and Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325.
Also, Title 37, Section 519, Code of Alabama 1940, as Recompiled 1958, provides the items of an improvement project that can be properly and legally included in the cost that is assessable against the property improved by said project.
But, the first question we have to consider here is not the cost issue, but whether or not the cost issue was so raised, either before the City Council or before the Circuit Court, that we can now review the propriety of allowing or disallowing it as an issue.
The objection that was made by the appellants before the City Council was directed to the propriety of the initial ordinance (64--81) promulgated by the Council advising property owners of the intended improvement project. Appellants did not make an objection, either written or oral, to the final assessment as envisioned by Section 535 of Title 37, Code of Alabama 1940, as Recompiled 1958.
Section 535 provides as follows:
'The owner or owners of any real estate or any interest therein, which it is proposed to assess for the cost, or any part thereof, of said improvement, may appear at any time on or before the date named in said notice, or at said meeting, and file in writing with the clerk or in his office any objections or defense to the proposed assessment against said property, or to the amount thereof, and persons who do not file objections or protests in writing against such assessment shall be held to have consented to the same.'
It was decided in City of Birmingham v. Wills, 178...
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Williams v. City of Dothan, Ala.
...decisions have repeatedly declined to construe the requirements of this statute narrowly. See, e.g., Berry v. City of Huntsville, 47 Ala.App. 587, 259 So.2d 269, 274-75 (1971), cert. denied, 288 Ala. 731, 259 So.2d 276 (1972); Hill Realty Co. v. City of Mountain Brook, 276 Ala. 191, 160 So.......