Fehler v. Gosnell

• Decision Date: 26 May 1896
• Citation: 99 Ky. 380
• Parties: Fehler v. Gosnell. Dickson v. Gleason.
• Court: Kentucky Court of Appeals

99 Ky. 380

Fehler v. Gosnell.

Dickson v. Gleason.

Court of Appeals of Kentucky.

May 26, 1896.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

JOHN BARRET AND JOHN ROBERTS FOR APPELLANTS.

LANE & BURNETT FOR APPELLEES.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

These cases have been heard together, and are appeals from judgments enforcing liens for the improvement of a part of Oak street, in Louisville, by original construction of the carriage-way.

The case of Dickson v. Gleason presents a question of jurisdiction not presented in the other case, which may be first disposed of. It was a suit upon apportionment warrants for street improvements, and the amount adjudged in the court below, as a lien upon the property of any one of the defendants, was less than $100, though the aggregate amount of the judgments is more than that sum.

It has been settled in this State that separate judgments can not be added together, in order, to give jurisdiction by the amount involved. "The legal questions involved may be identical, but the judgments are entirely distinct." (Zabel v. Harris, 82 Ky., 475; Oswald v. Morris, 92 Ky., 52). But the question remains whether this court has jurisdiction of the appeal in this case, irrespective of the amount of the judgment.

Section 950, Kentucky Statutes, provides: "No appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property, if the value in controversy be less than one hundred dollars, exclusive of interest and costs, nor to reverse a judgment granting a divorce. . . . In all other civil cases the Court of Appeals shall have appellate jurisdiction over the final orders and judgments of all courts."

In common acceptation the words "judgment for the recovery of money or personal property" imply a personal judgment. In this procedure no personal judgment was sought or obtained. The proceeding was in rem against the property, and provides for a sale of the land. There seems little difference beween the judgment in this case for the sale of land under a proceeding in rem to satisfy the lien upon it, and a judgment for the recovery of land, which it is conceded may be brought to this court by appeal, irrespective of the value of the land. (Smith v. Moberly, 15 B. M., 72.)

In our opinion a judgment in rem to enforce a street assessment lien may be appealed without regard to the amount of money for which the lien is adjudged. The next question for decision is whether the ordinances providing for the improvements were so passed as to be valid.

By section 2834, Kentucky Statutes (a section of the act for the government of cities of the first class), it is provided that . . . "no ordinance for any original improvement mentioned in this act shall pass both boards of the general council at the same meeting, and at least two weeks shall elapse between the passage of any such ordinance from one board to the other."

In the case of Fehler v. Gosnell, the ordinance providing for the improvement passed the lower board on April 5th, and the upper board on April 19, 1894; and the appellants contend that two weeks did not "elapse" between the votes of the two boards, within the meaning of the statute. It is earnestly contended by counsel for appellants — and much authority from other States is cited in support of their position — that the intent of the statute was to provide for fourteen full days between the days of the passage of the ordinance by the respective boards; but this contention does not seem to us to be supported either by the ordinarily accepted use of the language or by the statutory rule of construction of this State. In ordinary language a provision that two weeks must elapse between two acts would be considered as fulfilled by the first act occurring Thursday, and the second act occurring Thursday two weeks thereafter.

Moreover, section 453, Kentucky Statutes, provides that "if a statute requires a notice to be given, or any other act to be done a certain time before any motion or proceeding, there must be that time, exclusive of the day for such motion or proceeding; but the day on which such notice is given or such act is done may be counted as one day and part of the time."

It is to be observed that the time required by section 2834 of the statutes is between the passage by one board and the passage by the other, and is not between the day on which it is passed by one board and the day on which it is passed by the other.

Without undertaking to answer in detail the ingenious argument of counsel for appellant, it is sufficient to say that, in our opinion, the statute requires only that the passage by the first board shall be fourteen days before the passage by the other board; and that, in this case, that provision has been complied with. (Woods v. Patrick, Hardin, 457; Pollard v. Yoder, 2 A. K. Marshall, 264; Ogden v. Redman, 3 A. K. Marshall, 234; Sanders v. Norton, 4 Monroe, 464; Wood v. Commonwealth, 11 Bush, 220; and Mooar v. Bank of Covington, 80 Ky., 305.) Nor can we concede much force to the contention that section 453 of the statutes, being a general law of construction, must yield to the peculiar language employed in the act for the government of cities of the first class. The latter act is also a general law, and must be so under the Constitution.

The next objection to the judgments in these cases is based upon section 67 of the act for the government of cities of the first class (Kentucky Statutes, section 2829), which provides that whenever the board of public works shall order any work to be done, to be performed by independent contract, there shall be prepared and placed on file in said office complete drawings and specifications of said work. "Thereupon said board shall cause a notice to be published in one daily or weekly newspaper, of general circulation, published in said city, once in each week for two weeks, informing the public of the general nature of the work, of the fact that the drawings and specifications are on file in said office and of the nature and extent of the bond or security required, and calling for sealed proposals for said work by a day not earlier than ten days after the first of said publications."

Appellants claim that the demurrer to the petition should have been sustained, because it did not allege that the notice informed the public of the general nature of the work or of the fact that the drawings, etc., were on file in the office of the board or gave information of the nature or extent of the bond or security required.

The averment of the petition is as follows:

"And the plaintiffs say that the said board of public works caused to be printed and published, on the 5th and 18th days of April, 1894, in and by the said Evening Post and Louisville Anzeiger, advertisements; that, up to 12 m. on the 18th day of April, 1894, bids, offers and proposals would be received by said board of public works from persons offering, proposing and bidding to furnish all necessary labor and material therefor and to construct and complete the improvement of the carriage-way of Oak street, 30 feet in width, from the west line of 15th street to the center line of 16th street with the material and in the manner as prescribed by it and as provided for in the ordinance hereinbefore referred to as approved March 1, 1894."

After the demurrer was overruled, the defendants in each case pleaded over and filed with their answers copies of the notice which was actually given, and averred failure in said notices to comply with the provisions of the statute. The questions desired to be raised by the demurrer, therefore, were raised upon the actual facts of the notices, and we can not see that the action of the court in overruling the demurrers was error to the prejudice of the substantial rights of the appellants.

As each defendant filed an answer to the petition "it must be regarded as a waiver or virtual withdrawal of the demurrer, and leaves him in the same condition he would have been had the demurrer never been filed." (Patrick v. Conrad, 3 Marshall, 613; Curran v. Osborn, 10 B. Mon., 156.)

The objections to the sufficiency of the notices given by the board of public works are:

First. That the notice does not inform the public of the general nature of the work, but refers to the general ordinance regulating the improvement of streets.

Second. That it does not state the nature and extent of the bond or security required, but merely states that bond with approved security will be required.

These objections would have more force in a proceeding by way of injunction to prevent action under this ordinance. After the contract has been let and the work performed, we think it too late to rely upon these objections. (Section 2834, Kentucky Statutes.)

It is further objected that the apportionment warrants purport to have been ordered by the general council and are signed "J. Henry Hoertz, Clerk B. of P. W." This objection appears to us to be founded upon an erroneous theory that the apportionment warrants are the necessary basis for the action. If the warrants had been for other and erroneous amounts, the facts set out in the petition would justify a recovery by the plaintiff, provided the ordinance was in other respects valid.

We...