Chenault v. City of Russellville

• Decision Date: 21 April 1938
• Docket Number: 8 Div. 841.
• Citation: 236 Ala. 453,183 So. 437
• Parties: CHENAULT v. CITY OF RUSSELLVILLE.
• Court: Alabama Supreme Court

183 So. 437

236 Ala. 453

CHENAULT v. CITY OF RUSSELLVILLE.

8 Div. 841.

Supreme Court of Alabama

April 21, 1938

Rehearing Denied June 16, 1938.

As Modified on Rehearing June 30, 1938.

Further Rehearing Denied Oct. 6, 1938.

Appeal from Law and Equity Court, Franklin County; W. H. Quillin Judge.

Appeal by W. L. Chenault from an assessment for street improvement levied by the city of Russellville. From a judgment for plaintiff, defendant appeals.

Modified and affirmed on rehearing.

Travis Williams and Wm. L. Chenault, both of Russellville, for appellant.

J. Foy Guin, of Russellville, for appellee.

THOMAS Justice.

The appeal is from a judgment on the law side of the law and equity court of Franklin county. Loc.Acts 1923, p. 272.

This is the second appeal in this case, and the former appeal is reported as Chenault v. City of Russellville, 233 Ala. 60, 169 So. 706.

In the case of Walton v. City of Mobile, 232 Ala. 200, 167 So. 247, observation is made on the remedies of the property owner in case of a local assessment, viz.: (1) Present jurisdictional objections to improvement assessments, if such exist; (2) present objections as to the regularity of the proceedings to such end; and (3) appeal from the judgment. Code 1923, § 2196, as amended by Gen.Acts 1927, p. 765, § 25; Chenault v. City of Russellville, 233 Ala. 60, 169 So. 706.

Many questions assigned as error were decided against the appellant on the former appeal. That is to say, questions as to the regularity and legality of the proceedings to make the street improvement in question and to assess the cost thereof against the abutting property owners, according to the increased benefits derived therefrom, and we find no reason to depart therefrom. The case was reversed, however, because in the suit to set aside street assessment evidence was excluded tending to show that the cost of the pavement had been paid to the city by the state. Chenault v. City of Russellville, supra; Code 1923, § 2174 et seq., as amended by Gen.Acts 1927, p. 754 et seq., § 3 et seq.

On the second trial, among other things, it was agreed by counsel "That all testimony and evidence admitted on the former trial, shown in and by the bill of exceptions for appeal, set out in the transcript for appeal at pages 17 to 313, both inclusive, may be taken and considered by the trial court, as fully as if all witnesses testifying on the former trial had given the same testimony on the retrial and as if all documentary evidence offered on the former trial had been reoffered on the retrial; such bill of exceptions to become and constitute a part of the record in the event of a second appeal.

"That no evidence or testimony offered on the first trial, as to which an objection was sustained by the trial court, shall be considered on the retrial; but the right is reserved to both parties to reoffer the same evidence."

It was further agreed that rulings on the first trial rejecting evidence were not binding on the second trial; that the right was granted to call additional witnesses; and the reservation made for renewing of objections to evidence. Under this agreement, all rulings on the first trial are set out and are not presented for review on this appeal by a general objection to all of the testimony. There was no specific exception reserved which presented objections to former rulings for review.

What actually occurred on the trial, as affecting the rulings on which reversal was rested on the first appeal, is stated as follows:

"The plaintiff offers the same as far as specified in and by said agreement and limits the same as limited in and by said agreement.

"The defendant objects specifically to all that part of the testimony offered by the City of Russellville and in each and every case where objections were made to any part or parts of the testimony, assigning the same objections as shown by the record and the same exceptions taken as shown were taken by the record.

"The defendant objects specifically to that part of the record referred to in the agreement which was objected to by the City of Russellville, by its attorneys, and if the Court allows said testimony over the objection of the defendant, then the same exceptions are taken as shown were taken in the record on the former trial.

"The attorney for the plaintiff city states at this time to the Court, that if the Defendant desires the benefit of the testimony of the witness Ramsey as to which objections were sustained in the former trial and on which reversible error was predicated in and by the opinion of the Supreme Court, that they are entirely willing without objection or exception for the witness to be produced and testify in answer to the questions as to which objections were sustained in the former trial.

"The court overrules all objections of the City of Russellville to questions propounded to witness Ramsey in regard to State paying for the paving, and Court allows Defendant to call witness W. W. Ramsey, or any other witness he desires to call, to offer evidence as to whether or not the State of Alabama paid for the paving or any part of it."

The plaintiff presented the documentary evidence set out and the oral testimony which was before the court on the first appeal. Appellant did not call Mr. Ramsey, the former mayor, on the question on which reversal was rested on the former appeal.

Appellant offered the transcript from the State Highway Commission, which was admitted without objection or exception. The transcript was, in part, as follows:

"Defendant offers in evidence certified copy of contract with all attached papers certified to by L. L. Herzberg, Associate Commissioner of the Alabama State Highway Commission, certifying that he has control and supervision and charge of the records of the Alabama State Highway Commission, certified to December 15, 1936, by L. L. Herzberg.

"Defendant introduces in connection with this File Contract project voucher of State aid road, Project No. S-346, City of Russellville, Alabama, for work done from February 1 to August 1, 1928.

8000 sq. yds. base course and price of it

8000 sq. yds. sand rock asphalt and price of it,

8000 sq. yds. grading and draining and price of it.

"Q. That paving that was done out there was concrete base and asphalt top? A. That is right.

"Defendant introduces in evidence Pamplet 'J' Alabama State Highway Department, standard specifications, 1927, Division IV, contract forms. Project No. S-346, specifications, proposal, contract and bond for construction of pavement in the Town of Russellville, road known as S-346, part of the Russellville Red Bay Road in Franklin County, type concrete, file in the highway department office at Montgomery, Ala. Signed Alabama State Highway Department by F. C. McManus, Secretary State Highway Commission.

"Defendant introduces notice to Contractors State Project No. 346, Franklin County Showing type of work proposed, signed Woolsey Finnell, Highway Director.

"Defendant also introduces proposal for the construction of Project No. S-346 in Franklin County, Alabama, dated March 28, 1928, of City of Russellville, Russellville, Alabama, for constructing pavement on the Russellville-Red Bay road in the town of Russellville, etc. Plans and specifications marked State Project No. 346 signed Woolsey Finnell. * * *

"Defendant also introduces contract entered into by the City of Russellville with the State of Alabama to do that paving for the State of Alabama. This contract entered into and executed by the State of Alabama by Woolsey Finnell, Highway Director, and City of Russellville by W. W. Ramsey, mayor, and signed by associate commissioners, Henry J. Law, Jno. S. Turner, and Woolsey Finnell, Highway Director, dated April 14, 1928.

"Defendant also introduces bond signed by the City of Russellville by W. W. Ramsey, Mayor and Southern Surety Company by W. M. McCray, Jr., Attorney in fact, and approved by Woolsey Finnell, Highway Director, Henry J. Law and Jno. S. Turner, Associate commissioners."

Among other things, the record on the...