Carey-Reed Co. v. Sisco

• Decision Date: 27 October 1933
• Parties: CAREY-REED CO. v. SISCO et al. (two cases).
• Court: Kentucky Court of Appeals

64 S.W.2d 430

251 Ky. 22

CAREY-REED CO. v. SISCO et al. (two cases).

Court of Appeals of Kentucky

October 27, 1933

Appeals from Circuit Court, Crittenden County.

Two actions by the Carey-Reed Company against L. N. Sisco and others. From judgments dismissing its actions, plaintiff appeals.

Judgment in first case affirmed, and judgment in second case reversed and cause remanded, with directions.

Nunn &amp Waller, of Paducah, for appellant.

A. C Moore, of Marion, for appellee City of Marion.

Charles Ferguson, of Smithland, and Postlethweight & Postlethweight, of Marion, for other appellees.

HOBSON Commissioner.

Marion is a city of the fourth class. Its city council on June 27, 1928, passed an ordinance for the construction of a system of sanitary sewers in the city on the ten-year plan. The contract for the work was made with the Carey-Reed Company, who built the sewers. The work was accepted by the council, which apportioned the cost to the different property owners. Appellees refused to pay, and on August 26, 1930, the contractors brought suit No. 1 against appellees and the city to enforce the assessment against appellees' property. The ordinance, among other things, provided that the city engineer, when the work was completed in accordance with the plans and specifications, should make a full and correct estimate of the total cost showing the total number of abutting or fronting feet of property owned by each person and the proportionate part of the cost of the improvement to be assessed against his property; one copy of the estimate should be delivered to the board of public works, who should inspect the work. Any property owner might protest against the assessment before the board of public works. The board should hear the protest and its judgment should be final thereon. The city authorities had followed the ordinance and appellees, by their answer, presented the defense that the assessment had not been made as provided by the statute. The sewers were constructed under section 3579a-1, Kentucky Statutes, which among other things provided: "Upon the completion of the improvement under such ordinance, the engineer for the city shall make the estimate and apportionment of cost to each property owner therein and submit the same to the board of council of such city at a regular meeting and file it with the clerk thereof. The board of council shall then, by order, provide a time and place for a hearing to be had upon said estimate which shall be published at least once in a newspaper of said city ten days before the time so fixed by the council and the persons affected thereby shall lodge with the clerk of the city written protest of complaint, if any, relative thereto or relative to any other matter concerning said improvement or the proceedings affecting same, and the same shall be considered and disposed of by the board of council of the time and place designated in such notice before the estimate and apportionment aforesaid is approved. The board of council shall have power at such hearing to make such corrections or adjustments in the estimate or apportionment of cost or relative to any other matter concerning the improvement or proceedings affecting the same as may, in the judgment of such body, be just and equitable, and the same shall be entirely in their discretion, and their judgment thereupon shall be conclusive and binding upon all parties except in case of actual fraud upon the part of such board of council."

The ordinance, which provided for a hearing before the board of public works, was not in accordance with the statute. The city council had no authority to delegate to another body the power which the statute vested in it. The assessment made upon the basis of the action of the board of public works was not in accordance with the statute and was void. The circuit court upon this ground dismissed action No. 1.

Thereupon the estimates of the engineer were laid before the city council. Proper notice was given, and no protest having been filed by property owners, the city council approved the report of the engineer and made the assessment as provided by the statute. The appellees still refused to pay, and on November 3, 1931, the contractors brought the second action against appellees to enforce the lien upon their property for the amount of their assessments. The defendants filed answer pleading, among other things, the judgment in the former suit in bar of the action. On final hearing the circuit court dismissed also the second action. The plaintiffs appeal from the judgment in both cases.

1. As no assessment had been made in the manner provided by the statute and no statutory opportunity had been offered the property owners to protest, as required by the statute, the circuit court properly dismissed the first action based upon the void assessment, and the judgment in action No. 1 is affirmed.

2. Was the judgment in that case a bar to the second action? To determine this we must look to the language of the judgment itself. The judgment is in these words: "This cause of action being submitted for trial and judgment as to the defendants L. N. Sisco, R. H. Enoch, W. D. Sullenger, W. B. Yates and A. C. Kimsey, they having made a separate and distinct defense to the other defendants named in the petition and amendment thereto, and the court having heard the evidence and argument of counsel and being sufficiently advised from the entire record finds that the city council of the City of Marion did not by order provide a time and place for hearing protests of property owners as to the engineer's estimate of the cost of constructing the sewers and did not publish any notice giving the time and place of hearing protests of property owners as to the engineer's estimate of the cost of constructing said sewers in a newspaper published in Marion, Kentucky for ten days before the time fixed for the hearing protests. The court further finds that there is no merit in any other question raised by the aforesaid defendants. It is therefore adjudged by the court that the petition of the plaintiff, Carey-Reed Company, be and the same is hereby dismissed and said defendants recover of the plaintiff their costs herein expended."

It is clear from the judgment, read as a whole, that the action was dismissed on the ground that it was brought before a legal assessment was made. A like question was presented in Farris v. Matthews, 149 Ky. 455, 149 S.W. 896, where an action on an attachment bond had been brought when there was no valid judgment discharging the attachment. The court said: "In view of the fact that the action was dismissed because it was brought in the absence of a judgment sustaining the attachment, the action was prematurely brought, and the order below dismissing the action will be treated as an order dismissing without prejudice, and will not, therefore, bar another action on the bond, when the orders on the order book shall have been signed by the present judge." Page 458 of 149 Ky. 149 S.W. 896, 898.

To the same effect, see Farnsley's Adm'r v. Philadelphia, etc., Ins. Co., 156 Ky. 699, 161 S.W. 1111, and Van Hooser v. Atkinson, 168 Ky. 1, 181 S.W. 610.

The judgment in the first case is therefore no bar here to the second action.

3. Was the proceeding warranted by the statute?

The ordinance after providing for the...