Finley v. Tarrant City

• Decision Date: 16 October 1947
• Docket Number: 6 Div. 529.
• Citation: 32 So.2d 806,250 Ala. 19
• Parties: FINLEY et al. v. TARRANT CITY et al.
• Court: Alabama Supreme Court

32 So.2d 806

250 Ala. 19

FINLEY et al. v. TARRANT CITY et al.

6 Div. 529.

Supreme Court of Alabama

October 16, 1947

Rehearing Denied Dec. 18, 1947.

Geo D. Finley, of Tarrant City, and Fred G. Moore, of Birmingham for appellants.

Graham, Bibb, Wingo & Foster, of Birmingham, for appellees.

STAKELY Justice.

This is an appeal from a decree of the equity court sustaining the demurrer to a bill of complaint, as amended, except as to that aspect of the bill seeking injunctive relief. The decree also dismissed the bill, except as to that aspect of the bill seeking injunctive relief. The original bill of complaint was filed in 1935 by George D. Finley and others (appellants) against the City of Tarrant City, a municipal corporation, and Z. D. McCuen, the clerk of the City of Tarrant (appellees). Among other things, the bill sought to restrain the city from selling certain real estate owned by complainants to satisfy certain improvement assessments thereon.

From time to time the bill was amended. In June, 1941, complainants filed a substitute bill. In December, 1941, the court rendered a decree on demurrer to the substitute bill, declaring that 'many issues are sought to be raised by the aforesaid pleadings of complainants, which, in the opinion of the court, are not in this proceeding to be considered.' The court, however, declared that 'a case of equitable cognizance is contained therein', and overruled the demurrer. The aspect of the bill which the court considered as presenting a case for equitable relief is that part of the bill which seeks to enjoin the sale of the lots and preserve the lots in statu quo until the appeals hereinafter referred to can be tried.

The following is a brief summary of the allegations of the substitute bill. The complainants are the heirs at law of their mother, Mrs. N. J. Finley, who died in August, 1932, and who owned the property involved in the suit. Mrs. N. J. Finley on July 7, 1924, deeded certain strips of land to the city for use as a street, in consideration of which the city agreed to relocate certain fences on her adjacent property, build a retaining wall to protect the adjacent property and grade the property adjoining the strips so deeded. Thereafter in 1930 the city did improve the street, but contrary to its agreement it charged the grading and other unlawful expenses against the adjacent property, which was platted into lots. The aforesaid strips of land, together with the land previously acquired from Mrs. Finley by the Birmingham Electric Company for a right-of-way for street railway purposes and subsequently acquired by the city from that company for street purposes, became Jackson Boulevard.

Ordinance No. 12 provided for grading and paving of the street and laying of sidewalks on the street designated as Jackson Boulevard. Ordinance No. 38 provided for the same character of work on the street designated as Elm Street. Ordinance No. S-1 provided for the construction of certain sanitary sewers.

Assessments were made by the city against the lots adjoining the aforesaid streets and Mrs. N. J. Finley duly protested the assessments, filed her contest and appeal bonds and completed her appeals to the circuit court as provided by law. The city, disregarding these appeals, failed to send up the records to the circuit court as was its duty and some considerable time thereafter proceeded to advertise the lots for sale in satisfaction of the improvement liens.

It is alleged in the substitute bill that Jackson Boulevard is not a public street but belongs to complainants except that portion which was conveyed by Mrs. N. J. Finley to the Birmingham Electric Company for the right-of-way for its street car line many years prior to the doing of the work above mentioned. It is further alleged in the substitute bill that complainants own 20 feet of the strip of land which the city has designated as Elm Avenue which the city took for the construction of the so-called improvement on Elm Avenue without the consent of Mrs. N. J. Finley and without just compensation.

The bill sought (1) to enjoin the sales and to have declared a discontinuance of the assessment cases because of the failure of the city to comply with its duty and send up the record of appeals, to the circuit court for trial; (2) a mandatory injunction directing the city to send up the record to the circuit court for trial as the law directs; (3) a cancellation of the assessments because of excessive charges imposed with the knowledge and the purpose so to do by the city officials, under a conspiracy to tax Mrs. Finley out of her property; (4) cancellation of the deed from Mrs. Finley to the city and its removal as a cloud upon the title to complainants' property; (5) a perpetual injunction against the city from collecting or attempting to collect the assessments and from securing or attempting to secure possession in any manner of the lots and parcels of land; (6) a prayer for general relief.

The demurrer to the substitute bill which was overruled was contained in the answer. There was no appeal from the ruling on the demurrer to the substitute bill. The answer denied, in substance, among other things, that the streets were not public ways, denied that any part of the same had been taken without consideration and alleged that claims for such, if any, were long barred by laches, the statute of nonclaim and the statute of limitations.

On December 14, 1944, a phase of the case came before the Supreme Court of Alabama, which is reported as Ex parte Finley et al., 246 Ala. 218, 20 So.2d 98, 100. That case was an original petition of George D. Finley and others for mandamus to require E. M. Creel, as Judge of the Circuit Court of Jefferson County, to vacate an order sustaining objections of respondents to answering interrogatories propounded by complainants in a case pending in the Circuit Court of Jefferson County entitled George D. Finley et al. v. City of Tarrant City et al., and directing the respondent judge to enter an order requiring defendants to answer the interrogatories. In other words, the complainants in the case now before this court sought to require the City of Tarrant City and L. D. McCuen, clerk of the City of Tarrant City, to answer certain interrogatories which the court had refused to require these respondents to answer. This court in denying mandamus in part said:

'The phase of the bill, and only that, seeking injunctive relief against the foreclosure of the property by the city under the assessment liens pending trial of the appeals from the final assessments presents a case for equitable cognizance. Injunctive relief will be accorded pending an action at law to preserve the status quo of the property until a final settlement of the rights involved. * * *

'Nevertheless this according of equitable protection to the property pending such litigation is merely to preserve the property until the...