City of Corbin, for Use and Ben. of Moore v. Rains

• Court: Kentucky Court of Appeals
• Writing for the Court: SIMS, Commissioner.
• Citation: City of Corbin, for Use and Ben. of Moore v. Rains, 140 S.W.2d 1057, 283 Ky. 244 (Ky. Ct. App. 1940)
• Decision Date: 24 May 1940
• Parties: CITY OF CORBIN, for Use and Benefit of MOORE, v. RAINS.

140 S.W.2d 1057

283 Ky. 244

CITY OF CORBIN, for Use and Benefit of MOORE, v. RAINS.

Court of Appeals of Kentucky

May 24, 1940

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Action by the City of Corbin, for the Use and Benefit of W. L Moore, against S. J. Rains, Jr., to enforce a street improvement lien against defendant's property, wherein the defendant filed a counterclaim. From a judgment for defendant on his counterclaim, the plaintiff appeals.

Reversed for proceedings consistent with opinion.

M. A Gray, of Corbin, for appellant.

W. R. Henry, of Williamsburg, for appellee.

SIMS Commissioner.

Corbin, a city of the third class, brought this action against S. J. Rains, Jr., to enforce a street improvement lien against his property for $153.05, with interest and penalty. The improvement was made by virtue of an ordinance duly passed by the city under authority of Secs. 3450 and 3459a-1, Ky.Stats., which provide the cost of improvements shall constitute a lien upon the abutting property.

In his answer and counterclaim, as amended, Rains does not deny the amount of the city's claim nor that it has a statutory lien against his property for the balance due on the improvement assessment. He pleads that on March 28, 1927, he was paid an assessment warrant in the sum of $137 which he held against the property of one Eldridge; that he delivered this $137 check on that date to James Downing, city treasurer, directing him to turn same over to the city collector to be credited on the improvement lien against Rains' property; that the city failed to give him credit therefor, and it is now indebted to him in the sum of $137 with 6% interest per annum from March 28, 1927, subject to the $153.05 improvement lien against his property.

After the parties pleaded to an issue, depositions were taken and upon a submission of the cause to the chancellor, he adjudged the lien with interest against Rains' property amounted to $146.27; that the city never credited Rains with the $137 he paid the city treasurer on March 28, 1927, which sum with interest from that date amounts to $241.46; and judgment was entered for Rains on his counterclaim for $91.88, the difference between the lien against his property and the amount he paid the city, plus interest from March 28, 1927. The city appeals.

No complaint is made in the briefs as to the figures in the judgment and we presume they are correct. Rains made a motion to dismiss the city's appeal on the ground that the only controversy between the parties is whether he was given credit for $137 paid on March 28, 1927, hence the amount in controversy is less than $200 and no appeal lies. Section 950-1, Ky. Stats., fixes the minimum amount in controversy over which this court has jurisdiction on appeal at $200. But that section provides: "An appeal may be taken to the court of appeals as a matter of right from the judgment of the circuit court in all cases in which the title to land or the right to an easement therein, or the right to enforce a statutory lien *** is directly involved ***."

It is earnestly insisted by Rains that as he does not deny the amount of the lien, nor deny there is a lien upon his property to secure the balance of the improvement assessment against same, this action does not directly involve the enforcement of a statutory lien, but that the only controversy between the parties is whether he paid the city $137 on March 28, 1927. He calls our attention to the well-established rule that where the controversy relates to the damages to land or to an easement and there is no issue between the parties as to the title of the land, or as to the use of the easement, no appeal lies where the amount in controversy is less than $200, since the title to the land, or the right to the easement in such cases is not directly involved. Haynes v. Adsit, 167 Ky. 443, 180 S.W.

536; Illinois C. Ry. Co. v. Major, Ky., 121 S.W. 646; City of Covington v. McKenna, 86 S.W. 689, 27 Ky.Law Rep. 784; Sutton v. Catron, 151 Ky. 671, 152 S.W. 767; Burk Hollow Coal Co. v. Lawson, 160 Ky. 209, 169 S.W. 695. But these cases have no application here as we are confident we are dealing directly with the enforcement of a statutory lien.

Appellant cites many authorities such as Fehler v. Gosnell, 99 Ky. 380, 35 S.W. 1125, 18 Ky.Law Rep. 238; Mackin v Wilson, 45 S.W. 663, 20 Ky.Law Rep. 218; Huesman v. Dersch, 109 S.W. 319, 33 Ky. Law Rep. 77, to the effect that this court has jurisdiction in this case although the amount involved is only $137, because a question of a lien on real estate is involved. But an examination of these cases shows they were decided before section...