City of Covington v. Sullivan

• Decision Date: 05 December 1916
• Citation: 189 S.W. 709,172 Ky. 534
• Parties: CITY OF COVINGTON v. SULLIVAN ET AL.
• Court: Kentucky Court of Appeals

189 S.W. 709

172 Ky. 534

CITY OF COVINGTON v. SULLIVAN ET AL.

Court of Appeals of Kentucky.

December 5, 1916

Appeal from Circuit Court, Kenton County; Common Law and Equity Division.

Suit by Jerry Sullivan against the City of Covington and others, in which defendant Globe Cement Company filed a cross-petition. From a judgment declaring void benefit assessments on the property owned by defendants Richard Edmonds and T. J Edmonds, and further adjudging that plaintiff and defendant Globe Cement Company have judgment against defendant City of Covington, the city appeals. Reversed and remanded, with directions to enter judgment in conformity with opinion.

Miller C.J., dissenting in part.

F. W Schmitz, of Covington, for appellant.

T. J. Edmonds, of Covington, for appellee Edmonds Bros.

John E. Shepard, of Covington, for appellee Globe Cement Co.

Schmidt & Holmes, of Covington, for appellee Jerry Sullivan.

CARROLL J.

Richard and T. J. Edmonds owned a lot in the city of Covington which fronted on Pike street about 21 feet and was 186 feet deep. Abutting on the side of this lot, Greer avenue, a new street, was opened, which extended along the side of the lot for the full distance of 186 feet. After Greer avenue was opened, and in September, 1909, the city council by an ordinance provided for the improvement of the carriageway of this avenue, and in November, 1909, entered into a contract for this improvement with Sullivan by which he was to be paid $410. The work was completed by Sullivan and accepted in September, 1910, and soon thereafter Sullivan brought this suit against the city of Covington, the Edmonds, the owners of the lot, and the Globe Cement Company, which also had an improvement lien against the lot, asking for the enforcement of his lien on the lot, and, if it should be adjudged that he did not have a lien in whole or in part for the amount of this improvement claim, he have a judgment against the city for any balance due on his claim after exhausting his lien on the lot.

In this suit the Globe Cement Company, by an answer and cross-petition, set up that the city of Covington, by an ordinance adopted October 11, 1909, ordered the construction of a sewer along the Edmonds' lot for its full length abutting on Greer avenue, and entered into a contract with it for the construction of this sewer, for which it was to be paid $135. It also averred that in October, 1910, the city by an ordinance directed the construction of a sidewalk on Greer avenue abutting this Edmonds lot, and entered into a contract with it for the construction of this sidewalk at a cost of $172. Further averring that these improvements had been accepted by the city, it asked that its lien on the lot for these two amounts be enforced, and that, if it could not have an enforceable lien on the lot for the whole of its claim, it have a judgment against the city for whatever balance might be found due after exhausting its lien.

It will be seen that the total of these liens is $717, and the Edmonds, in their answer to the petition of Sullivan and the cross-petition of the Globe Cement Company, pleaded that the value of their lot after all the improvements were made was less than $300. They also averred that to subject the lot to a lien for these improvements would amount to its confiscation, and therefore asked that the suits of Sullivan and the Globe Cement Company, in so far as they sought to subject the lot the asserted liens for these improvements, be dismissed.

After the case had been prepared for trial, the lower court found as a matter of fact that the value of the lot after the improvements were made was $250. It further found as a matter of law that the assessments for the original improvement of Greer avenue, consisting of the items before mentioned, amounted to a confiscation of the lot, and therefore the assessments were declared void and the liens asserted by Sullivan and the Globe Cement Company denied. It was further adjudged that Sullivan and the Globe Cement Company have a judgment against the city for the amount of their claim. From this judgment the city prosecutes this appeal.

When the case was called on the docket of this court the appellees, Sullivan, the Edmonds brothers, and the Globe Cement Company, moved to dismiss the appeal of the city upon the ground that this court had no jurisdiction of the appeal, which motion was passed to be heard with the merits. The judgment of the lower court was rendered on November 17, 1913. The city excepted to the judgment, but did not pray an appeal in the lower court. However, on October 6, 1915, and within two years from the judgment, the city filed a copy of the judgment in the clerk's office of this court, executed before the clerk a supersedeas bond, and summons was issued against the appellees, but it did not file with the record a motion asking that an appeal be granted.

It will be observed that the judgment of Sullivan against the city was for $410, and the judgment of the Globe Cement Company was for $307, so that each of the judgments was over $200, but neither of them amounted to $500, and both of them were judgments for the recovery of money only. In carrying out the provisions of the act of 1914, now section 950 of the Kentucky Statutes, regulating the jurisdiction of this court and the manner in which appeals may be prosecuted where the amount in controversy on a money judgment is less than $500, this court, by rule 22 of the court, has provided that:

"If a party desires to prosecute an appeal from a judgment for the recovery of money or personal property, or to enforce a lien thereon, in cases where the value in controversy is as much as two hundred dollars, exclusive of interest and costs, but less than five hundred dollars, he must prepare and file his record in the clerk's office of this court in the time and manner now provided by law, and may supersede the judgment by executing bond before the clerk of this court as in other cases when appeals are prayed in this court. * * * And there must accompany the record a written motion of the appellant asking the court to grant an appeal."

It is very clear that under this rule the city of Covington had the right to prosecute an appeal to this court, and the only objection that can be urged to the manner in which the appeal was prosecuted is that there was no written motion of the appellant accompanying the record asking the court to grant an appeal. When an appeal in a case like this is prosecuted to this court within the time allowed by law, the appellant should, of course, file with the record a written motion asking the court to grant an appeal. The statute and the rule are both very plain and very simple, yet it seems from the many motions that come before us that a good many lawyers are not acquainted with the easily understood practice pointed out in the statute and the rule, as well as in numerous decisions of this court. L. & N. R. R. Co. v. Greenbrier Dist. Co., 170 Ky. 775, 187 S.W. 296; Oman-Bowling Green Stone Co. v. L. & N. R. R. Co., 169 Ky. 832, 185 S.W. 118; Tinsley v. Jones, 169 Ky. 279, 183 S.W. 549; Van Meter v. Van Meter, 168 Ky. 783, 182 S.W. 950; Haynes v. Adsit, 167 Ky. 443, 180 S.W. 536; Gough v. Illinois Central Ry. Co., 166 Ky. 568, 179 S.W. 449; Gering v. Hoke, 164 Ky. 722, 176 S.W. 210; Childers v. Ratliff, 164 Ky....