City of Cincinnati v. Emerson

• Decision Date: 23 November 1897
• Citation: 48 N.E. 667,57 Ohio St. 132
• Parties: CITY OF CINCINNATI v. EMERSON.
• Court: Ohio Supreme Court

48 N.E. 667

57 Ohio St. 132

CITY OF CINCINNATI v. EMERSON.

Supreme Court of Ohio.

November 23, 1897

Error to circuit court, Hamilton county.

This action was brought against the city of Cincinnati by Henry Emerson, defendant in error, in the court of common pleas of Hamilton county, to restrain the collection of an assessment made by the city upon a corner lot owned by him, on account of an improvement of the street that ran lengthwise along the side of his lot. The action was tried in the court of common pleas, and judgment given in favor of the city. The cause was taken to the circuit court on error, and there reversed. Thereupon the city brought the cause into this court to obtain a reversal of the judgment of the circuit court, and affirm that of the court of common pleas. Reversed.

Syllabus by the Court

1. Where an assessment is imposed on a city lot to pay the cost of improving a street upon which it abuts, and the owner thereof, having two distinct grounds for contesting the validity of such assessment, one of which is common to him and the owners of all the other abutting lots, the other pertaining to his lot only, elects to bring an action for the benefit of himself and the other abutting owners to enjoin its collection, based on the grounds common to all, he should be deemed to have waived his right to bring a second action on the other ground, which pertained to his lot only.

2. If the first action fails on its merits, the judgment rendered therein is a bar to a second action brought by him alone, in which the assessment is assailed and an injunction against the collection sought on the grounds that pertained to his lot only. This is so, although the grounds upon which the first action was founded, if maintained, would have totally defeated the assessment, while the grounds set forth in the second action would have simply reduced the amount that had been assessed against the plaintiff's lot.

Frederick Hertenstein and William H. Whittaker Corp. Counsel, for plaintiff in error.

Burton P. Hollister and Hollister &amp Hollister, for defendant in error.

BRADBURY, J.

The only question arising on the record relates to the effect to be given to the proceedings and judgment had in a former action between the same parties respecting the identical assessment assailed in the present action. The record discloses that Mr. Emerson was the owner of a lot situated on the southwest corner of Molitor and Dallas streets, in the city of Cincinnati, fronting 25 feet and 9 inches on Dallas street, and ‘running back on Molitor street 82 feet’; that in 1888 the city council of Cincinnati adopted a resolution declaring the necessity of improving Molitor street, and in July following (1889) passed an ordinance providing therefor, which improvement was afterwards made and accepted by the city, and the cost thereof assessed upon abutting property, according to its frontage on Molitor street,-the street improved. The true front of his lot being upon Dallas street, its owner, the defendant in error, brought the present action to restrain the city from collecting any greater amount than would be payable when the assessment should be computed according to the actual frontage of the lot on Dallas street, which, as we have seen, was 25 feet and 9 inches. To this claim for partial relief against the assessment the city interposed a plea of a former adjudication. The cause was tried upon this issue in the court of common pleas, the court finding that the plaintiff there, defendant here, in a former action brought by him on behalf of himself and others had sought to enjoin the collection of the assessment in toto, on the ground that the ordinance to provide for the improvement had not been lawfully passed, because it ‘and six other ordinances to improve, having each been read three times on different days, and the question then and there being on their final passage, all seven of said ordinances were then and there, on said day, voted upon together, without a separation or division of the question, and were finally passed together on said vote, and on one and the same roll call of the years and nays, and by forty-seven favorable votes out of a membership of fifty members, and without any other or further vote or roll call of the yeas and nays.’ The court found, further, that this method of enactment did not render the ordinance invalid, and that the assessment based upon it was binding on the abutting property, and thereupon dismissed the plaintiff's petition. This judgment, not having been reversed or set aside, was adjudged by the court of common pleas to constitute a bar to the second action, which was brought, as we have seen, by the plaintiff below to reduce the assessment placed upon his property on account of the same improvement, because his being a corner lot was liable to assessment only upon such part of its length along the street improved as was equal to its frontage on Dallas street, upon which last-named street it in fact fronted. The circuit court reversed this judgment, holding that the judgment in the first action was not a bar to the relief sought by means of the second action.

It is apparent that the particular ground of relief set forth by the plaintiff below in his second action was not in fact considered or passed upon by the court in the first action. It does not, therefore, fall within the principle that governed the decision of this court in Hixson v. Ogg, 53 Ohio St. 361, 42 N.E. 32. In that case (Hixson v Ogg, supra) the precise issue determined in the first action was sought to be relitigated in a subsequent action between the same parties, on the ground that the subject-matter of the two actions was different. This court there held against the right to relitigate the question. The syllabus was as follows: ‘Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is...