City of Birmingham v. Emond

• Decision Date: 17 May 1934
• Docket Number: 6 Div. 355.
• Citation: 157 So. 64,229 Ala. 346
• Parties: CITY OF BIRMINGHAM v. EMOND.
• Court: Alabama Supreme Court

157 So. 64

229 Ala. 346

CITY OF BIRMINGHAM v. EMOND.

6 Div. 355.

Supreme Court of Alabama

May 17, 1934

Rehearing Granted Oct. 4, 1934.

Further Rehearing Denied Nov. 1, 1934.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Proceeding by the City of Birmingham to fix an assessment against property for street improvements, protested by R. L. Emond. From the judgment of the circuit court on appeal thereto plaintiff appeals and applies for mandamus.

Reversed and rendered on rehearing.

W. J Wynn, J. H. Willis, and T. A. McFarland, all of Birmingham for appellant.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellee.

THOMAS Justice.

The appeal is on the merits and petition or motion for writ of mandamus.

The judgment rendered by the trial court was under section 2210 of the Code, as amended by the act of 1927 (Acts 1927, pp. 753, 768, § 39) at the instance of a party in interest and not the city.

The judgment recited: "* * * it appearing to the Court on the hearing of this cause on appeal, both from the pleading and proof before the Court, that the assessment involved in this appeal was not properly made by the Commission of the City of Birmingham, plaintiff in this case, in so far as it concerns that parcel of land included therein and owned by the defendant as mortgagee and alone involved in this appeal, by reason of a technical irregularity or defect in said assessment proceedings in this: That the whole assessment so made and fixed is a joint assessment against Mutual R. E. Co., Inc., and the defendant R. L. Emond, whereas, the defendant R. L. Emond had at the time of said assessment no right, title or interest in and to that parcel of land so assessed other than that part thereof which is alone involved in this suit, which defendant then owned as duly recorded mortgagee given as security for the balance of the purchase price owing to him from said Mutual R. E. Co. Inc.; and proof being made to the Court by the plaintiff that it has incurred an expense in improving the street alleged in said assessment proceedings, which is a proper charge against defendant's said parcel of land; and, it appearing to the satisfaction of the Court that the verdict of the jury returned in this case found the increased value of the whole parcel of land so assessed by the plaintiff's City Commission by reason of the special benefits derived from such improvements to be the sum of $1325.11, without ascertaining such increased value to defendant's said parcel of land alone; and the defendant having moved the Court for a judgment assessing and fixing against his said parcel of land alone involved in this suit its proportionate part of the amount of the increased value so recited in the verdict of the jury as the area of defendant's said land bears to the area of the whole parcel of land so assessed by the plaintiff's City Commission, and it appearing to the Court that such ratio is 22.2% to 77.8%, whereupon, it is ordered and adjudged by the Court that the defendant's said motion for proportionate assessment be, and the same is hereby granted and that judgment be and the same is hereby rendered by the Court under authority of section 2210 of the Code of Alabama of 1923 as amended by Gen. Acts of Alabama of 1927, pp. 753, 768, § 39, for the plaintiff and against defendant's said parcel of land involved in this suit for the sum of Two Hundred Ninety Four & 17/100 ($294.17) Dollars as the amount properly chargeable against defendant's said parcel of land as the amount of the increased value of said land by reason of the special benefits derived to it alone from said street improvements," describing the strip of land adjacent to and on the north side of Fortieth street, Ensley. The description of the strip of land employed in the judgment corresponds to the map in evidence. (Italics supplied.)

The petition for mandamus is presented on the supposed right of the city to other relief shown by the record, and under the line of decisions from Ex parte Tower Manufacturing Co., 103 Ala. 415, 15 So. 836, to Ex parte Green, Superintendent of Banks, 221 Ala. 298, 129 So. 72; Ex parte Cullinan, 224 Ala. 263, 139 So. 255, 81 A. L. R. 160.

When the trial was had, there was pending appellee's motion to transfer the cause to the equity docket of the court. The city entered therein with the knowledge of all the facts, and (1) impliedly consented for the court to proceed to judgment rendered; (2) resisted the defendant's motion to quash the purported assessment as to the Emond lot; (3) moved the court to dismiss the appeal of Emond because it did not cover the whole assessment and other lot; (4) and by resisting defendant's motion for a judgment notwithstanding the verdict rendered.

The right of a court with jurisdiction to render the proper judgment notwithstanding the verdict in a proper case is recognized by the courts; and in this case, responding to defendant's motion, entered the proper judgment against defendant-appellee's land warranted by the evidence and proportional to the ascertainment of the jury of special benefits accruing by reason of expenditures and public improvements made and incurred thereon by the city.

The statutes, sections 2196, 2204, as amended by the Code of 1928 (Acts 1927, pp. 752, 765, 767, §§ 25, 33), gave the owner of any interest in land, and any person aggrieved by the assessment proposed or made against the property, the right of protest and objection, to make defense, and to appeal to the circuit or this court from adverse judgment and decision.

As indicating a class of persons in interest, or who may be aggrieved by the assessment and judgment, this vendor-mortgagee (Emond), in his litigation with the city as to this lot and his interest therein, in the latter's successful effort for condemnation for street and this improvement, held an owner or necessary party in interest (sections 7478, 7479, Code); and that his mortgage still existed on the lands not condemned was the subject of decision in City of Birmingham v. Emond, 223 Ala. 20, 134 So. 622.

It follows, and we so hold, that under sections 2196 and 2204 of the Code, appellee had an interest in the lands that were affected and concluded by the instant proceeding, improvements made, and assessments and lien to be declared protected by the judgment; and authorized him as the owner or party with that interest as that he properly litigated in this case. Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68; Posey v. Dodson,

211 Ala. 335, 100 So. 488; Stanley v. Johnson, 113 Ala. 344, 21 So. 823; State Bank of Elberta v. Peterson, 226 Ala. 13, 145 So. 154; Manchuria S. S. Co. v. Harry G. G. Donald & Co., 200 Ala. 638, 77 So. 12; Glass v. Tisdale, 106 Ala. 581, 19 So. 70; Page & Jones on Taxation By Assessment, §§ 915, 1348.

In the trial the court correctly instructed the jury that appellee Emond was a proper party in interest to protest against the assessment; that the city commission overruled his plea or protest, "and Mr. Emond saw fit to appeal his case to the Circuit Court and to demand a trial by jury in this proceedings, as to whether or not his property received any special benefits by reason of the improvement that was made by the City of Birmingham. * * * Now, it is the contention of Mr. Emond that his property should not be assessed with the cost of improving the whole parcel of property within those heavy lines there. Well, this is not a proceeding against Mr. Emond. This is a proceeding against that property embraced within those heavy lines there; and the thing for you to decide in this case is whether or not that property described as I have read to you, embraced within those heavy lines there shown upon the blackboard, whether or not that property was benefited by reason of any special benefits that accrued by reason of the improvements that were made out there."

It is established that under the statute, section 2174, Code, as amended by Acts 1927, p. 754, § 3, the required assessments are to be made against the property abutting on said street or other public place so improved and increased in value by reason of the special benefits derived from said improvements; and this is the test, though one person may own several adjacent lots, etc. The statute contemplates a separate assessment against each "lot or parcel." Section 2190, Code, as amended by Acts 1927, p. 764, § 19; City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448; Peoples v. State Security Bank, 218 Ala. 534, 119 So. 226; Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509; Wilson v. City of Russellville, 209 Ala. 617, 96 So. 870; Montgomery, Superintendent of Banks, v. City of Florence, 226 Ala. 341, 146 So. 882; Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336.

Here, the material fact of ownership was in different parties, and no common interest or ownership existed; and that fact made known to the court, and objection thereto, should not have been assessed as one lot or parcel of land. Sections 2190, 2193, 2196, Code, as amended by Acts 1927, pp. 764, 765, §§ 19, 22, 25. Failing therein, Emond prosecuted his appeals, as we have indicated.

The whole tract-consisting of two interests-was assessed by the city commission for $2,650.22; by the return and verdict was fixed at $1,325.00; and thereafter the court rendered judgment of apportionment as against the Emond lot at $294.17. We have indicated that the other party at interest does not complain of this apportionment, and only the city and Emond complain by respective assignments of error.

Such unjust result indicated in the several assessments and findings as to Emond's land should not have been allowed to stand...