Creighton Univ. v. City of Omaha, 16,701.

• Court: Supreme Court of Nebraska
• Writing for the Court: REESE
• Citation: 91 Neb. 486,136 N.W. 829
• Parties: CREIGHTON UNIVERSITY v. CITY OF OMAHA.
• Docket Number: No. 16,701.,16,701.
• Decision Date: 29 May 1912

91 Neb. 486
136 N.W. 829

CREIGHTON UNIVERSITY
v.
CITY OF OMAHA.

No. 16,701.

Supreme Court of Nebraska.

May 29, 1912.

Syllabus by the Court.

Section 213, c. 12a, Comp. St. 1909, commonly called the Omaha Charter, prescribes the method of taking appeals from the action of the city council in awarding damages to property owners, caused by the grading of streets in said city; and a compliance with the provision that a petition be filed in the district court within 30 days after the final order of the council assessing damages is necessary to the taking of an appeal.

Appeal from District Court, Douglas County; Redick, Judge.

Action by the Creighton University against the City of Omaha. Judgment for defendant, and plaintiff appeals. Affirmed.

Sedgwick and Hamer, JJ., dissenting.

[136 N.W. 829]

T. J. Mahoney and J. A. C. Kennedy, for appellant.

John A. Rine, W. C. Lambert, and Clinton Brome, for appellee.

REESE, C. J.

The following facts are shown by the transcript in this cause: On the 4th day of August, 1908, the city council of the city of Omaha passed an ordinance “establishing the grade of Twenty-Fourth street from Burt street to Cass street, in the city of Omaha.” For the purpose of the decision of the question presented, it is not deemed necessary to notice the provisions of the ordinance, more than to say that by it the grade of Twenty-Fourth street within the points named appears to have been duly established; the ordinance taking immediate effect. On the 16th day of March, 1909, another ordinance was passed, and later approved, declaring the necessity of grading Twenty-Fourth street from Burt street to Cass street, and appointing three members of the city council appraisers to assess and determine the damages, if any, to the property owners, which might be caused by such grading, the city to pay one-half the cost and expense thereof. By the ordinance three members were named as such appraisers, to appraise, assess, and determine the damages to property owners which might be caused by the grading of the street. It was provided that the ordinance should take effect upon its passage. Presumably on the 26th day of April, 1909 (although the date of filing is not shown), plaintiff presented to the committee on appraisal of damages its claim for damages in the sum of $22,800, the items of which are set out in the claim. On May 18, 1909, the city council met in regular session, when the committee on appraisal of damages to plaintiff's property made its report, assessing the damages at $700, remaining in session one hour at the time of making the assessment. There is no showing in the record that any notice of this meeting of the committee, or what its action had been or would be, was given to plaintiff. The report was immediately approved by the council. On May 25, 1909, the council was again in session, when the mayor reported that he had approved the report of the committee. June 2, 1909, an appeal bond was filed and approved by the city clerk. June 8, 1909 (presumably), a notice of appeal was given the mayor and council and city clerk, although we find no evidence of its service. It is probable that no such notice was necessary. A transcript of the proceedings of the council was prepared by the city clerk, dated June 10, 1909, and filed in the office of the clerk of the district court on the same day. On the 2d day of July, of the same year, defendant city of Omaha filed in the district court its motion to dismiss the appeal, and objecting to the jurisdiction of the court, upon the ground that “no petition was filed as required by section 213 of the city charter of the city of Omaha.” On the 2d day of December, 1909, plaintiff filed its petition. On the 26th day of March, 1910, the motion to dismiss was sustained, and the appeal dismissed. Plaintiff appeals.

The cause has been elaborately briefed on both sides. But, as we view the question presented, it is not difficult of solution. The cause turns upon the provisions of sections 212 and 213 of the Omaha Charter in force in 1909 (Comp. St. 1909, c. 12a). Section 212 need not be here copied, as, so far as it relates to the subject before us, it simply gives the right of appeal in cases of this kind. Section 213 is as follows: “Whenever the right of appeal is conferred by this act, the procedure unless otherwise provided shall be substantially as follows: The claimant or appellant shall, within twenty days from the date of the order complained of, execute a bond to such city with sufficient surety to be approved by the clerk, conditioned for the faithful prosecution of such appeal and the payment of all costs adjudged against the appellant. Said bond shall be filed in the

[136 N.W. 830]

office of the city clerk. It shall be the duty of the city clerk, on payment or tender to him of the cost of the transcript, at the rate of ten cents per hundred words, to prepare a complete transcript of the proceedings of the city relating to their...