City of Albany v. Spragins

• Decision Date: 30 June 1922
• Docket Number: 8 Div. 456.
• Citation: 208 Ala. 122,93 So. 803
• Parties: CITY OF ALBANY ET AL. v. SPRAGINS ET AL.
• Court: Alabama Supreme Court

93 So. 803

208 Ala. 122

CITY OF ALBANY ET AL. v. SPRAGINS ET AL.

8 Div. 456.

Supreme Court of Alabama

June 30, 1922

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Bill by R. E. Spragins, Shelby Fletcher, H. B. Beard, and John W Knight against the City of Albany, W. M. Leftwich, and the American National Bank, to annul contracts entered into by the City of Albany with the other respondents to the bill and for injunction. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Gardner J., dissenting.

In view of the authority conferred on a city council under Code 1907 § 1367, whether the city council exercised good or bad judgment in letting a paving contract on cost plus basis is not a question for the courts.

The unit contract prices listed in an exhibit to the bill are as follows:

"Proposal of W. M. Leftwich Company for street paving work to be done by the City of Albany, Alabama, under Improvement Ordinances 358, 359, 360, 361, 362, and 363, and submitted to the city council January 20, 1920, and amended March 16, 1920.

Stone or concrete headers per foot ..................................... $ .55

Curb, 5 inch by 12 inch, per foot ......................................... .60

Curb, 6 inch by 10 inch, per foot ......................................... .55

Concrete gutter, 2 feet wide, per lineal foot ............................. .60

Concrete gutter, 3 feet wide, per lineal foot ............................. .90

Combination curb and 2 feet gutter, per lineal foot ...................... 1.20

Combination curb and 3 feet gutter, per lineal foot ...................... 1.50

8"inch storm sewers, per lineal foot ..................................... 1.25

12"inch storm sewers, per lineal foot .................................... 2.00

15"inch storm sewers, per lineal foot .................................... 2.25

24"inch storm sewers, per lineal foot .................................... 4.50

Catch"basins complete, each ............................................. 60.00

Manholes complete, each ................................................. 55.00

Bituminous concrete pavements with concrete base (specification A), per

square yard ............................................................ 3.75

Bituminous concrete pavement with macadam base (specification B), per

square yard ............................................................ 3.25

Penetration bituminous and macadam pavement (specification C), per

square yard ............................................................ 2.55

Bituminous surfaced macadam pavement (specification D), per square yard .. 1.75

Plain macadam pavement on Summerville road (specification E), stone

delivered per cubic yard ............................................... 3.50

All other work on Summerville road at cost plus 10 per cent.

Resetting curb, per lineal foot ........................................... .25

Moving curb, per lineal foot .............................................. .50

Reinforced concrete, per cubic yard ..................................... 40.00

Brick pavement, per square yard, cost plus 15 per cent.

Excavation, without charge; it being understood that the cost of any

excavation needed for any curbing, paving, etc., is included in the

price paid for said curbing, paving, etc.

Bituminous concrete pavement, with macadam base (specification B) on

Second Avenue East, from Grant to south line of Jackson, laid on

present base, which is to be scarified and resurfaced, adding new

stone where necessary, per square yard ................................. 1.75

On all streets except Second Avenue East, from Grant to south line of

Jackson, and Summerville road, having old macadam pavement in place

which can be used as part of new pavement, the city shall receive

credit for said macadam at the rate of $3 per cubic yard compact

measurement, or $2 per cubic yard loose measurement.

Concrete pavement on car tracks, per square yard ........................ 4.10"

p>Page Tennis Tidwell and G. O. Chenault, both of Albany, for appellants.

Callahan & Harris, of Decatur, for appellees.

MILLER J.

This bill of complaint was filed by R. E. Spragins and others against the city of Albany, W. M. Leftwich, and the American National Bank. The complainants are taxpayers in the city of Albany, and own hundreds of lots in the city. W. M. Leftwich, under contract with the city of Albany, is paving six of the streets of the city. Complainants own some lots fronting on each of the streets being paved under the contract. The bill seeks to have this contract declared illegal, null, and void, and canceled by the court, and requests injunction against Leftwich restraining and enjoining him from doing any further work under the contract, and enjoining the city of Albany from making any further payments to him for work under it. W. M. Leftwich is a resident of, and his post office is, Nashville, Tenn.

The bills avers that the city of Albany has entered into a contract with the American National Bank to borrow the $150,000 for the purpose of enabling the city to pay the same out under the terms of the pavement contract to Leftwich; that $27,000 of the sum has been secured by the city. The bill seeks to declare this contract to borrow the balance null and void, and for an injunction to enjoin the city of Albany from receiving it and the bank from paying it to the city. The American National Bank is a corporation, nonresident, of Nashville, Tenn.

It appears from the bill that the city of Albany intend and will, when the illegal pavement contract with Leftwich is completed, assess the costs and expenses of the improvement against the property of complainants and others abutting on the street so improved, to the extent of the increased value of such improvement to the property by reason of the special benefits derived from such improvement.

The two nonresident defendants demurred specially and appeared specially by the demurrer to only test the jurisdiction of the court. The city of Albany appears generally by demurrer to test the jurisdiction of the court also, and to test the equity of the bill.

The demurrers of the defendants to the bill of complaint as amended were overruled by the court, from this decree the defendants appeal, a severance is granted, and each separately assigns this decree as error.

The bill seeks to cancel and annul two contracts. The bank is a party to one contract and Leftwich is a party to the other contract. The city of Albany is a party to both contracts. The bank is directly interested in one contract, Leftwich is directly interested in the other contract, and the city of Albany is directly interested in both contracts. The court could not cancel these two contracts without these parties. They are essential, vital, necessary parties to this cause. Berlin v. Sheffield Coal, etc., Co., 124 Ala. 322, 26 So. 933; Carlisle v. Crump, 165 Ala. 206, 51 So. 744. These three are made parties to the cause by the prayer and averments of the complaint. They are the only defendants, and it appears on the face of the complaint that the city of Albany is a resident, municipal corporation; that Leftwich is a nonresident person residing in, with his post office at, Nashville, Tenn., and the bank is a nonresident corporation, with post office address Nashville, Tenn.

The city of Albany, by demurrer, questions the jurisdiction of the court of the cause, because on the face of the bill two of the defendants are indispensable parties and they are nonresidents, and the bill fails to state a cause of action against either of them under the statute. Section 3054, subd. 2, Code 1907. This is permissible. Iron Age Pub. Co. v. West. U. T. Co., 83 Ala. 498, 3 So. 449, 3 Am. St. Rep. 758; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12.

These nonresident defendants appear specially by demurrers to test the jurisdiction of this court as to them and to the subject-matter of this suit. This is the limited appearance made by them. There is nothing in the record indicating service on either of them in any manner or form of any process in this cause. This special appearance by demurrer for limited purposes mentioned is not a waiver of the question of jurisdiction of the person of the defendants; there is no submission thereby of the person of either to the jurisdiction of the court; and such limited appearance for such purposes is permissible. Tigrett v. Taylor, 180 Ala. 296, 60 So. 858.

"When the court has no lawful power to act, by reason of the fact that such power either is not conferred or is expressly withheld, with regard to the subject-matter of the suit, the parties thereto cannot be said to have waived their objection to this want of power because it is not made at the proper time. Such an objection cannot be waived, and is fatal at any stage of the proceedings." Tigrett v. Taylor, 180 Ala. 304, 60 So. 860; 12 Ency. Pl. & Pr. p. 186.

The gravamen of this suit is the cancellation of the two contracts and for injunctions against the two nonresident defendants and the city of Albany, restraining them from performing their respective contracts. This relief-cancellation of contracts and injunctions restraining their enforcement-prayed for under the averments of the bill if granted, necessarily involves a personal decree against each of the nonresident defendants. No personal notice of the suit having been given the nonresident defendants, and the court having no jurisdiction of them personally, no such personal decrees could be rendered and enforced by the court in this cause. This court must have jurisdiction of the person of the nonresident by personal service, or a waiver...