Elliott v. City of Auburn

• Decision Date: 24 March 1961
• Docket Number: No. 34883,34883
• Citation: 108 N.W.2d 328,172 Neb. 1
• Parties: LeRoy E. ELLIOTT and Gertie B. Elliott, Appellants, v. The CITY OF AUBURN, Nebraska, a Municipal Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 328

108 N.W.2d 328

172 Neb. 1

LeRoy E. ELLIOTT and Gertie B. Elliott, Appellants, v. The CITY OF AUBURN, Nebraska, a Municipal Corporation, et al., Appellees.

No. 34883.

Supreme Court of Nebraska.

March 24, 1961.

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

2. In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof.

3. Section 17-509, R.R.S.1943, provides that the governing body of any city of the second class shall have power to pave any street, streets, alley, or alleys, at public cost, or by levy of special assessments on the property especially benefited thereby, proportionate to benefits, and by ordinance to create paving districts; provided, that none of the improvements named shall be ordered except as provided in sections 17-510 to 17-512.

4. Section 17-510, R.R.S.1943, provides that whenever a petition signed by 60 percent of the resident owners, owning property directly abutting upon the street, streets, alley, or alleys proposed to be improved, shall be presented to and filed with the city clerk, the governing body shall by ordinance create a paving district or districts, and shall cause such work to be done, shall contract therefor, and shall levy assessments on the lots or parcels of land abutting on or adjacent to such street, streets, alley, or alleys especially benefited thereby in such district in proportion to such benefits, to pay the cost of such improvement.

5. Section 17-513, R.R.S.1943, provides that the sufficiency of the protests or petitions referred to in sections 17-510 and 17-511, as to the ownership of the property, shall be determined by the record in the office of the county clerk or register of deeds at the time of the adoption of said ordinance.

6. In a charge of fraud the facts showing such fraud must be pleaded, and a mere allegation of fraud is not sufficient.

7. Section 25-1901, R.R.S.1943, provides that the judgment rendered, or final order made, by a county court, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified by the district court.

8. Section 25-1903, R.R.S.1943, provides that the proceedings to obtain such reversal, vacation, or modification shall be by petition entitled 'petition in error,' filed in a court having power to make such reversal, vacation, or modification, setting forth the errors complained of, and thereupon a summons shall issue and be served, or publication made, as in he commencement of an action.

9. A collateral attack is an attempt to impeach the judgment by matters dehors the record, before a court other than the one in which it was rendered, in an action other than that in which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.

10. The Legislature has so far provided no appeal to the district court from the act of a city council of a city of the second class sitting as a board of equalization to levy special assessments for paving. In such a situation, the only way a district court gets jurisdiction is by proceedings in error.

11. In this jurisdiction an opportunity to be heard with right of review upon the question of assessments for benefits is all that is required to satisfy the due process provisions of the Constitutions of Nebraska and the United States.

12. Section 17-524, R.R.S.1943, provides that assessments made under the provisions of sections 17-509 to 17-523 shall be made by the council or board of trustees at a special meeting, by a resolution fixing the valuation of such lot assessed, taking into account the benefits derived or injuries sustained in consequence of such contemplated improvements, and the amount charged against the same; and notice of the time of holding such meeting, and the purpose for which it is to be held, shall be published in some newspaper published or of general circulation in such city before such meeting is held, or, in lieu thereof, personal service may be had upon persons owning or occupying property to be assessed.

Dwight Griffiths, Auburn, for appellants.

Yale C. Holland, Clarence E. Heaney, Jr., Omaha, John Ferneau, Dale K. Cullen, Auburn, Donald F. Stanley, Peru, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, SPENCER and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiffs, LeRoy E. Elliott and Gertie B. Elliott, brought this action in equity in the district court for Nemaha County against the City of Auburn, a municipal corporation, the mayor of the city, the members of the city council, the city clerk, and the county treasurer of Nemaha County, defendants. The purpose of the action was to have special assessments for paving improvements declared void, to enjoin collection of the special assessments, to have the levy against the plaintiffs' property stricken from the tax rolls in the county treasurer's office, and to quiet title to the plaintiffs' property against the levy and assessment for paving taxes.

All of the defendants except the county treasurer of Nemaha County demurred to the second amended petition on the grounds that the second amended petition did not state facts sufficient to constitute a cause of action; that the trial court was without jurisdiction over the subject matter of the action; and that the actions and proceedings of the mayor and city council could be reversed, vacated, or modified only by proceedings in error. The trial court sustained the defendants' demurrer and dismissed the plaintiffs' action. The plaintiffs filed a motion for new trial which was overruled. The plaintiffs perfected appeal to this court.

The plaintiffs's second amended petition, in substance, alleged that the plaintiffs, since March 31, 1958, were the owners of Lots 11 and 12, Block 8, in Courthouse addition to the city of Auburn, acquiring fee simple title thereto by warranty deed of record March 24, 1958; that the plaintiffs moved into the premises March 31, 1958; that the real estate owned by the plaintiffs was included in and constituted a part of paving district No. 27; that on or about April 7, 1958, a petition was presented to the mayor and city council requesting that body to improve the designated streets located within the limits of said city, and to create a paving district to be known as paving district No. 27; that on April 7, 1958, there were 19 or more resident owners of real estate directly abutting upon the streets petitioned to be improved, but that the petition presented to the mayor and city council was signed by not more than 11 resident owners owning property directly abutting upon the streets petitioned to be improved; that the 11 owners signing the petition did not constitute 60 percent of the resident owners as required by section 17-510, R.R.S.1943; that the petition for the creation of paving district No. 27 was therefore insufficient to confer jurisdiction or authority upon the city or upon its mayor and city council to enact an ordinance for the creation of a paving district as required by section 17-510, R.R.S.1943; that the plaintiff, LeRoy E. Elliott, prior to April 7, 1958, had informed the city attorney, one of the defendant councilmen of the city, and the city engineer that the plaintiffs were the resident owners of record of real estate and had not signed the petition for the creation of the paving district, were opposed to the creation of said district, and would not sign the petition; that the petition lacked a sufficient number of signatures of the resident owners to authorize or empower the city to proceed with the creation of the proposed paving district; that on April 7, 1958, the mayor and city council wrongfully enacted ordinance No. 756 of the city of Auburn, then made an erroneous finding that 18 resident owners owned real estate directly abutting upon the streets proposed to be improved; that the mayor and city council on February 9, 1959, did sit as a board of equalization to assess the costs of improvements made in the purported paving district No. 27 created under ordinance No. 756 and levied a special assessment of $1,285.37 against the property of the plaintiffs for the cost, assessment, and benefit of said paving; that the city clerk failed to send notices by mail to the property owners or interested parties in each of such paving districts prior to the council meeting on February 9, 1959, and consequently another meeting of the board of equalization was held on June 9, 1959, after mailing copies of the published notice of that meeting to each of the property owners and interested parties; that at the second meeting of the board of equalization there was made a reassessment and relevy, and the amount of special assessments as against the plaintiffs' property was fixed in the amount of $1,285.37; that the mayor and members of the city council, through the city clerk, caused the levy and assessment of February 9, 1959, to be certified to the office of the county treasurer of Nemaha County, and placed on the tax rolls as a tax and special assessment against the plaintiffs' property; that the certification was made on April 20, 1959, after the plaintiffs had commenced this action by filing their original petition on March 28, 1959; and that the relevy and reassessment of the meeting of the board of equalization on June 9, 1959, was certified to the office of the county treasurer June 17, 1959.

Attached to the plaintiffs' petition as an exhibit is a legal notice published in the Auburn newspaper dated April 11, 1958, showing that ordinance No. 756 creating paving district No. 27,...