Buckwalter v. Duncan

• Decision Date: 09 June 1928
• Docket Number: 27,705
• Citation: 267 P. 962,126 Kan. 179
• Parties: LAURA BUCKWALTER, Appellant, v. SYL DUNCAN et al., Appellees
• Court: Kansas Supreme Court

267 P. 962

126 Kan. 179

LAURA BUCKWALTER, Appellant, v. SYL DUNCAN et al., Appellees

No. 27,705

Supreme Court of Kansas

June 9, 1928

Decided January, 1928

Appeal from Sedgwick district court, division No. 3; GROVER PIERPONT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Enjoining Special Assessment--Necessary Parties. In an action to enjoin a special assessment for constructing a city sewer, the city is a necessary party.

2. SAME--Enjoining Special Assessment--Time for Bringing Action. An ordinance ascertaining and apportioning the amount of a special sewer assessment was published on June 4. The action to enjoin the assessment was commenced against the city on August 12. Held, the action could not be maintained because not commenced within thirty days after publication of the ordinance. (R. S. 13-906.)

3. SAME--Enjoining Special Assessment--Effect of Action Against Improper Parties Within Time. The fact that the county clerk the county treasurer and others were joined as defendants, and were served with summons within the thirty-day period, did not remove the bar to maintenance of the action.

Laura Buckwalter, pro se.

A. V. Roberts, Vincent F. Hiebsch and Roger P. Almond, all of Wichita, for appellee City of Wichita.

OPINION

BURCH, J.:

The action was one by a taxpayer to enjoin as illegal a special assessment for the construction of a sewer in a sewer district of the city of Wichita. The city, by demurrer and then by answer, asserted the action was not commenced in time. The court decided the case on its merits against plaintiff, and she appeals.

The amount due on each lot subject to assessment for construction of the sewer was ascertained and apportioned by ordinance published on June 4, 1924. The petition was filed on June 28, 1924. The parties defendant were the board of county commissioners, the county clerk, the county treasurer, contractors who constructed the sewer, and a certain newspaper publisher. Service was promptly made on the defendants, except the city. The city was served with summons on August 12, 1924. The statute reads as follows:

"No suit nor action of any kind shall be maintained in any court to set aside or in any way contest or enjoin the levy of any special assessment for constructing or repairing any sidewalk, pavement, sewer or any other public improvement after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained." (R. S. 13-906.)

The city was not a subdivision of the county, the board of county commissioners was not the agent or the legal representative of the city in any matter connected with the assessment or collection of this tax, the county had no interest in the tax, and the county commissioners were neither necessary nor proper parties to the action. There was no pleading nor proof that the contractors who constructed the sewer had any interest in the tax, and they were improperly joined. There was no pleading nor proof that any notice relating to the...