City of Louisville v. Clark, Etc.

• Decision Date: 20 January 1899
• Citation: 105 Ky. 392
• Parties: City of Louisville v. Clark, Etc.
• Court: Kentucky Court of Appeals

105 Ky. 392

City of Louisville v. Clark, Etc.

Court of Appeals of Kentucky.

January 20, 1899.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

H. S. BARKER AND H. L. STONE FOR THE APPELLANT.

PHELPS & THUM AND LANE & BURNETT FOR THE APPELLEES.

JUDGE BURNAM DELIVERED THE OPINION OF THE COURT.

This action was instituted by appellees to enforce liens on the lots of appellees Dinwiddie, Thomas, Maguiar, and Hillerich abutting on Chestnut Street, in Louisville, to satisfy certain apportionment warrants issued "for the original construction of Chestnut street, from the west line of 26th to the center line of 27th street, by grading, curbing, and paving it with vitrified brick or block pavement, with corner stones at the intersection of streets and alleys, and footway crossings across all intersecting streets and alleys, in accordance with a general ordinance concerning the improvement of Chestnut street approved April 25, 1892."

The defendants (appellees here) resisted the claim on several grounds: First, they allege in their answer that the necessary preliminary steps to authorize the letting of work and the enforcement of the liens for the payment therefor against abutting lots were not taken as required by the charter and ordinance; second, in the fourth paragraph of their answer they allege that the ordinance and contract under which the work was done are void, because they provide that the contractor should keep the street so constructed in repair for five years after its completion at the expense of the lot owners.

Appellees (as plaintiffs in the action) demurred to the fourth paragraph of the answer, which the chancellor overruled, holding that the ordinance and contract under which the work was performed were void, and adjudged that the demurrer be carried back to the petition, which was based on the ordinance and contract, and therefore set out no cause of action against the defendants, and allowed plaintiffs to amend. Appellees thereupon filed an amended petition, bringing appellant, the city of Louisville, before the court, and seeking to make it responsible for the amount due, on the ground that it had contracted for the work, and had received it, and issued therefor apportionment warrants against the abutting lots, which warrants the chancellor had held invalid.

No denial was made by appellant of the averments of the amended petition, and the court thereupon rendered a judgment dismissing the petition, so far as the defendant abutting property holders were concerned, and gave judgment against the city of Louisville for the full amount called for in the apportionment warrants sued on; and this appeal is prosecuted to reverse that judgment.

The identical question involved in this case was decided by this court in the case of Fehler v. Gosnell, 99 Ky., 380, . It was held in that case that a similar ordinance was not void, but that, if the price of the five years' repairs entered into the bid of...