Chenault v. City of Russellville

• Decision Date: 23 April 1936
• Docket Number: 8 Div. 660
• Parties: CHENAULT v. CITY OF RUSSELLVILLE.
• Court: Alabama Supreme Court

169 So. 706

233 Ala. 60

CHENAULT v. CITY OF RUSSELLVILLE.

8 Div. 660

Supreme Court of Alabama

April 23, 1936

Rehearing Denied Oct. 8, 1936

Appeal from Law and Equity Court, Franklin County; B.H. Sargent 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.

Reversed and remanded.

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

J. Foy Guin, of Russellville, for appellee.

KNIGHT Justice.

The city of Russellville, Ala., undertook to improve certain of its streets under the provisions of section 2174 et seq. of the Code; and to cause the cost and expense of the improvements to be assessed against the abutting property to the extent of the increased value of such property by reason of the special benefits derived from such improvements. To that end ordinances and resolutions were passed and adopted.

After the work of improving the street upon which appellant's property abutted had been completed, and the city had accepted the same, and the assessment roll had been prepared and delivered to the city clerk, that official gave due notice thereof as required by section 2192 of the Code. This notice was published in the Franklin County Times, a weekly newspaper published in Russellville, Franklin county, Ala in general circulation in Russellville, in its issue of November 22, 1928.

Following the giving of this notice, the appellant appeared, and filed with the city clerk his "protest, objection and defenses."

Thereafter at a meeting of the city council held on December 11, 1928, pursuant to the published notice, the city council of Russellville, by resolution, approved the assessment rolls and lists, and overruled the objections and protest of the appellant, and all others, against the proposed assessments, and in the same resolution proceeded to fix the amount of the assessment against each lot or tract of land described in the assessment roll.

From the assessment made and entered against the property of the appellant, the appellant, aggrieved by the decision of the council in fixing the assessment against his property, within the time allowed by law, prosecuted an appeal from "the assessment against him and his property" to the Franklin county law and equity court.

The appeal bond was approved on December 29, 1928, and, while said cause was still pending in the Franklin county law and equity court, the appellant filed a motion in the cause for the transfer of the same from the "law side of the court to the equity side of the court." This motion was made and filed in the cause on May 27, 1933.

On this motion to transfer the cause, the court on May 29, 1933, entered an order transferring the cause to the equity side of the court.

On June 22, 1933, the appellant filed his bill of complaint in the cause. To this bill the city of Russellville filed numerous grounds of demurrer. This demurrer was heard by the court and sustained, and the bill was dismissed, and the cause was restored to the law docket of the court.

The case was tried by the court, without a jury, and a judgment was rendered fixing the assessment against appellant's property known as "The Alpha Walker Homestead" at $4,000, and fixing the assessment against appellant's property known as "The Bullock Place" at $250. This was less than the assessment fixed by the city council of Russellville.

By the judgment of the court a lien was declared upon each piece of said property to the amount of the assessment fixed by the court, and ordering the property sold "separately for the satisfaction of the said judgment of assessments respectively as so adjudged by the court, with interest lawfully accruing thereon after thirty days from this date and for the costs of court incident to such sale, and that a venditioni exponas or other proper process issue accordingly for the enforcement of said liens respectively, if same be not paid and satisfied within thirty days from this date."

It is first insisted here that the court committed error to reversal in sustaining the demurrer of the city of Russellville and "in returning the case to the law side of the docket."

We do not deem it necessary or profitable to enter upon a discussion as to whether there was or was not equity in appellant's bill filed in the cause after its removal to the equity side of the docket, for we are clear to the conclusion that, if the court committed error in sustaining the city's demurrer to this bill, and in retransferring the case to the law side of the docket, this action of the court involved, no injury to the appellant.

In our recent case of Walton v. City of Mobile, 167 So. 247, the observation is made that the property owner, in cases of local assessments, has three remedies open to him.

In the above-cited case it is held: "The first and fullest remedy is by objections and appeal in which he [property owner] may present fundamental or jurisdictional objections, as well as objections going to the regularity of the proceeding." City of Hartselle v. Culver, 216 Ala. 668, 114 So. 58; Nashville, Chattanooga & St. Louis R. Co. v. Town of Boaz et al., 229 Ala. 155, 155 So. 536.

The property owner may by bill in equity attack the proceedings if jurisdiction of the subject-matter is not conferred on the board by statute, because of the character and use of the property, or because of failure to make and file the roll or list as required by section 2191 of the Code of 1923, and such infirmity does not appear on the face of the proceedings. Such latent infirmity is the subject of averment and proof by evidence "extrinsic of the record, showing the character and use of the property or that such roll or list was not made and filed within the time and as required by the statute." Walton v. City of Mobile, supra; Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210; City of Jasper et al. v. Sanders, 226 Ala. 84, 145 So. 827; City of Birmingham et al. v. Seaboard Air Line R. Co., 227 Ala. 77, 148 So. 425.

However, on direct appeal from the assessment, as provided for by section 2204 the property owner could defeat the assessment by proof of the matters which would give a court of equity jurisdiction in the premises. This being true, the dismissal of appellant's bill was without injury to him. City of Hartselle v. Culver, supra; Nashville, Chattanooga & St. Louis R. Co. v. Town of Boaz et al., supra; Walton v. City of Mobile, supra.

Over the objection of the appellant, the court permitted the appellee, city of Russellville, to introduce in evidence the transcript of the proceedings of the city council of Russellville relating to the assessments, so far as the same concerned the property of appellant. This transcript on its face appears to set out all the ordinances and resolutions passed and adopted by the city council, and it shows that all requirements of the statute relating to local improvements by municipalities, as provided for by section 2174 of the Code, were met and observed, except in one particular, and that was, it did not contain a copy of the assessment roll so far as the same concerned appellant's property. The transcript is authenticated by certificate of the city clerk of the city of Russellville.

In passing upon appellant's objections to the introduction in evidence of the transcript of the proceedings of the city council, it appears that the court's order was thus expressed: "For the present overruled," to which ruling defendant excepted.

It appears that during the trial the court, over objection of the appellant, allowed the appellee to file and read in evidence an amended transcript, or an amendment to the transcript, which set out the assessment roll, omitted from the first transcript, in so far as it concerned appellant's properties and assessment.

The court committed no error in permitting the appellee to file the amended transcript, which supplied the omission in the original transcript as to the assessment roll covering appellant's property. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Code, § 2207; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448.

It is insisted by appellant that, in as much as the original ordinance and resolutions, touching the local improvement of the street upon which appellan...