City of Muskogee v. Samuel

• Decision Date: 16 March 1920
• Docket Number: 8528.
• Citation: 188 P. 669,77 Okla. 314,1920 OK 115
• Parties: CITY OF MUSKOGEE ET AL. v. SAMUEL ET AL.
• Court: Oklahoma Supreme Court

188 P. 669

77 Okla. 314, 1920 OK 115

CITY OF MUSKOGEE ET AL. v. SAMUEL ET AL.

No. 8528.

Supreme Court of Oklahoma

March 16, 1920

Syllabus by the Court.

The evidence examined, and held the findings of the trial court are not clearly against the weight of the evidence.

Appeal from District Court, Muskogee County; R. P. De Graffenreid Judge.

Action by P. W. Samuel and others against the City of Muskogee Chas. Wheeler, Jr., City Clerk, and another. Cause transferred from superior court of Muskogee county to district court, and judgment for plaintiffs, enjoining collection of special paving assessments, and defendants appeal. Affirmed.

Charles A. Moon and J. B. Furry, both of Muskogee, for plaintiffs in error.

Tom Neal, of Poteau, and William Neff, L. E. Neff, and Benj. B Wheeler, all of Muskogee, for defendants in error.

McNEILL J.

This action was commenced in the superior court of Muskogee county by the defendants in error, hereinafter styled plaintiffs against the plaintiffs in error, hereinafter styled defendants, to enjoin the collection of special assessments against the real estate of the plaintiffs for street improvements, consisting of paving in improvement district No. 33 in the city of Muskogee. The cause of action was transferred to the district court, and upon trial to the court resulted in a judgment for the plaintiffs, and permanently enjoining the defendants from collecting the assessments complained of. The petition of the plaintiffs allege several jurisdictional defects in the proceedings taken by the defendant city of Muskogee in ordering the improvements of the streets in letting the contract and in assessing the benefits. There is a further allegation of fraud and collusion between the city engineer and city council, the result of which fraud and collusion, the contractor was awarded bonds in payment for a large quantity of work in paving said streets, which work was not actually performed, and a further allegation of fraud and collusion between the engineer and contractor, in that the contract was for a five-inch base, but the contractor, by reason of fraud and collusion with the city officials, only built a three-inch base, and that the contractor fraudulently put sand and gravel in said pavement instead of cement, thereby making said pavement worthless.

From a judgment in favor of the plaintiffs, the defendants have appealed. The trial court made certain findings of fact. The fifth finding of fact was that no preliminary estimate of the cost of the improvement was prepared by the city engineer and presented to the city council, or filed with the city clerk. The defendants for reversal contend that the evidence is insufficient to support such finding. We have made an examination of the record, and it disclosed that the plaintiffs produced the city clerk as a witness, who stated that he was unable to find any such preliminary estimate of the cost of the improvement, and from what investigation he had made it disclosed that none was on file. The defendants in error were the city and city clerk, and...