Cox v. City of Birmingham

• Decision Date: 16 February 1926
• Docket Number: 6 Div. 827
• Citation: 108 So. 622,21 Ala.App. 341
• Parties: COX et al. v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

108 So. 622

21 Ala.App. 341

COX et al. v. CITY OF BIRMINGHAM.

6 Div. 827

Court of Appeals of Alabama

February 16, 1926

Rehearing Denied April 6, 1926

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Proceeding by the City of Birmingham to assess the property of T.G. Cox and Amanda Cox for street paving. From the judgment defendants appeal. Affirmed.

Certiorari denied by Supreme Court in Cox v. City of Birmingham, 108 So. 625.

Theo. J. Lamar, of Birmingham, for appellants.

W.J Wynn, W.K. Terry, and J.H. Willis, all of Birmingham, for appellee.

SAMFORD J.

The judgment in this case was rendered February 16, 1925. Within the time allowed by law, motion was made to set aside the judgment and for a new trial. This motion was regularly continued from time to time, until April 24, 1925, when judgment was entered overruling the motion, and on May 23d following an appeal to this court was perfected. It is now insisted that to give this court jurisdiction the appeal must have been perfected within 30 days from rendition of the original judgment. To sustain this position we are cited to section 2211, Code 1923, providing for appeals from judgments of the kind here considered. We are not in disagreement with the decisions in Lewis v. Martin, 210 Ala. 401, 98 So. 635, Snider v. Funderburk, 209 Ala. 663, 96 So 928, and other authorities cited by appellee, but the filing of the motion for new trial in accordance with rule 22, Circuit Court Rules, 4 Code 1923, p. 901, its regular continuance from day to day, had the effect of suspending the judgment until the determination of the motion. Florence C. & I. Co. v. Field, 104 Ala. 471, 16 So. 538.

It is next insisted that no sufficient exception is reserved to the action of the court in overruling the motion for new trial. This contention is not tenable. The motion is set out in extenso in the record, it was not necessary to have again copied it in the bill of exceptions. When the motion is so set out, all that is necessary is for the bill of exceptions to show a ruling on the motion and an exception reserved. Wood & Pritchard v. McClure, 209 Ala. 523, 96 So. 577; Grand Bay L. Co. v. Simpson, 202 Ala. 606, 81 So. 548; Sansom v. Covington County Bank, 17 Ala.App. 556, 87 So. 406.

The appeal in this case is from a judgment of the circuit court of Jefferson county, determining and fixing the amount of the increased value of defendant's property, by reason of special benefits derived from street improvements adjacent thereto, under statutes authorizing the improvements and the assessments of the amounts to the property adjacent.

In this character of proceeding it is not necessary to file a complaint; the transcript being equivalent to a formal complaint. Code 1923,§ 2209.

Acting under the powers conferred on municipalities by article 26, c. 32, of the Code of 1907 (sections 1359-1420), the commissioners of the city of Birmingham prepared to make certain improvements as to Twenty- Eighth Street, Ensley, and to levy assessments against the adjacent property to pay for the costs thereof. On February 6, 1923, acting under section 1366 of the Code of 1907, an ordinance was adopted fixing the grade of the street which was proposed to be improved. This ordinance seems to be in all things regular. Following this ordinance, an ordinance was on the same day adopted providing for the improvement therein described, the authority for which is found in section 1359, Code 1907. This ordinance appears to be in all things regular. In this ordinance it was provided (section 3 [c]):

"That no assessment shall exceed the costs of such improvements or the increased value of such property by reason of the special benefits derived from such improvements."

Section 4 of the ordinance fixed the estimated costs of the improvements, and February 27th was fixed as a day for hearing protests from interested parties. On February 27, 1923, at a meeting of the commission, called as above noted, no protest being filed, the former ordinance was ratified. Bids were advertised for by publication as required, and on March 20, 1923, the contract for the improvement was let at the contract price of $5,561.25. Then follows a notice to property owners of the time and place when assessments will be determined, and on the day and date set the commission in regular meeting passed a resolution reciting the several ordinances formerly passed relative to the improvement, the letting of the contract, the actual cost of the improvements, the hearing of the protest as to assessments by several property owners, among whom were these defendants, a ratification of former ordinances, a fixing of the aggregate amount, and a detailed assessment to each of the abutting property owners.

An appeal was taken by appellants here from the finding of the commissioners to the circuit court, and from a judgment in that court this appeal is taken. The issues presented in the circuit court were: (1) Whether or not the amount assessed against the property was in excess of the cost of the work. (2) Whether or not the amount assessed was the true increased value of the property, by reason of the special benefits derived from the improvements. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325.

On the trial, a transcript of all proceedings before the commission, duly certified and identified, was introduced in evidence, which was prima facie evidence of the correctness of such assessment, and that said property and persons, including defendants, are justly indebted to the city for the amount here claimed. Code 1923, § 2208.

On the trial, defendant offered to introduce the contract of Fromhold & Kessler, made in compliance with their bid and the...