City of West Palm Beach v. Ryder

• Decision Date: 05 March 1917
• Citation: 74 So. 603,73 Fla. 558
• Parties: CITY OF WEST PALM BEACH v. RYDER et al.
• Court: Florida Supreme Court

74 So. 603

73 Fla. 558

CITY OF WEST PALM BEACH v. RYDER et al.

Florida Supreme Court

March 5, 1917

Appeal from Circuit Court, Palm Beach County; H. Pierre Branning Judge.

Bill by J. W. Ryder and others against City of West Palm Beach. From an interlocutory order overruling its demurrer to the bill the city appeals. Order affirmed.

Syllabus by the Court

SYLLABUS

In passing upon an assignment based upon the overruling of a demurrer to a bill in equity, an appellate court will consider only such grounds of the demurrer as are argued before it, treating the other grounds as having been abandoned.

In passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true and a demurrer to the whole bill should be overruled if the bill makes any case for equitable relief.

Matters dehors the bill cannot be raised by way of demurrer, but must be raised by way of plea or answer.

A demurrer to the whole bill should be overruled, if the bill makes any case for equitable relief.

Though the allegations of a bill of complaint be abstract and general and largely in the nature of asserted conclusions yet if under the allegations a case entitling the complainant to relief as prayed can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.

Every presumption is in favor of the correctness of an order or decree rendered by a circuit judge, and the burden rests upon one appealing from such order or decree to overcome this presumption of law.

COUNSEL H. L. Bussey, of West Palm Beach, for appellant.

Atkinson & Burdine, of Miami, for appellees.

OPINION

SHACKLEFORD J.

J. W. Ryder and other citizens and taxpayers filed their bill in chancery against the city of West Palm Beach, a municipal corporation, wherein it is alleged that the defendant municipality had---- 'created and established liens upon all the property and against all of the lots on Clematis avenue from right of way of Florida East Coast Railway to Narcissus street, including the several properties of your orators and are now threatening to collect the same by legal process in the manner provided by the charter and ordinances of the city of West Palm Beach.'

The bill and the exhibits attached thereto and made a part thereof cover about 37 typewritten pages. We do not deem it necessary for a proper disposition of the case to attempt to give even a synopsis of the many allegations. The relief sought is that the defendant municipality----

'may be enjoined and restrained from instituting any suit or suits against your orators, or either of them, or other persons owning property abutting on Clematis avenue, for the enforcement of any lien or liens created by reason of the repaving of Clematis avenue with concrete pursuant to the resolution of the city council, Exhibit E to the bill.'

Other relief is also prayed, including a mandatory injunction. Exhibit E above referred to is quite lengthy, the caption thereof being as follows:

'Resolution of the city council determining the necessity of paving Clematis avenue from sidewalk to sidewalk between the right of way of the Florida East Coast Railway on the West and Narcissus street on the east, in the city of West Palm Beach, Florida; fixing and determining the cost of such paving and improvement; fixing and determining the amounts of benefits and damages to private property abutting upon said avenue caused by such paving and improvement; assessing against such private property and to the owners thereof a portion of the expense and cost of such paving and improvement; providing when the same shall be due and payable; and fixing the time and place for hearing remonstrances or protests against the same by such owners of private property.'

As to the provisions thereof it is sufficient to state that after reciting the necessity for paving Clematis avenue between the right of way of the Florida East Coast Railway on the west and Narcissus street on the east, it proceeds to prescribe the paving material to be used, fixes the total cost of such paving at the sum of $13,523.10, apportions the amounts to be paid by the respective abutting property owners, and contains the following two sections, among others:

'6. That one-third of said assessments respectively shall be due and payable by said owners respectively on November 1, A. D. 1915, and one-third of said assessment shall be due and payable by said owners respectively on November 1, A. D. 1916, and one-third of said assessment shall be due and payable by said owners respectively on November 1st, A. D. 1917, and said second and third installments of said assessment shall bear interest from November 1, A. D. 1915, at the rate of 6 per cent. per annum: Provided, however, that said owners, or any of them, may pay the whole of his, her or its assessment at any time on or after November 1, A. D. 1915, and thereby avoid the payment of such interest.'

'8. That Monday, the 4th day of October, A. D. 1915, at 7:30 o'clock p. m., at the city council chamber in said city of West Palm Beach, Florida, are herely fixed and designated as the time and...