First Nat. Bank v. Fountain Motor Co.

• Decision Date: 11 May 1933
• Docket Number: 4 Div. 633.
• Citation: 227 Ala. 133,148 So. 817
• Parties: FIRST NAT. BANK OF DOTHAN v. FOUNTAIN MOTOR CO. et al.
• Court: Alabama Supreme Court

148 So. 817

227 Ala. 133

FIRST NAT. BANK OF DOTHAN v. FOUNTAIN MOTOR CO. et al.

4 Div. 633.

Supreme Court of Alabama

May 11, 1933

Rehearing Denied June 22, 1933.

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Bill to enforce lien of improvement bonds by the First National Bank of Dothan against the Fountain Motor Company and H. C Johnson. From a decree sustaining a demurrer to the bill complainant appeals.

Reversed rendered, and remanded.

Steiner, Crum & Weil, of Montgomery, and Farmer, Merrill & Farmer, of Dothan, for appellant.

C. L. Rowe and M. A. Owen, both of Elba, and M. S. Carmichael, of Montgomery, for appellees.

KNIGHT Justice.

The First National Bank of Dothan, appellant, the purchaser and owner of certain improvement bonds, issued by the town of Elba, filed its bill in the circuit court of Coffee county to enforce the lien of an assessment fixed and levied by the proper authorities of that municipality against certain described property of appellees and others, which was located on Davis street.

The bill as originally filed did not set out copies of the ordinances under which the assessment was levied. However, the bill was subsequently amended by setting out the ordinances, and copies of the proceedings of the town council, which culminated in the making of the street improvements, and the levying of the assessment against the abutting properties.

The bill as amended avers that on the 1st day of October, 1927, the said town of Elba issued its 6 per cent. interest-bearing bonds, interest payable semiannually, "to carry and cover" the assessments made for the improvements, in the aggregate sum of $19,437.57; that the appellant is the owner of the bonds; that the amount assessed against the abutting property of appellees is $278.39, no part of which has been paid; and that a large part of the assessment is past due.

All the proceedings of the town council, which are necessary to a proper determination of the case on demurrer are incorporated in the bill, by way of exhibits.

Many grounds of demurrer were assigned to the bill as amended, but were all addressed to the bill as a whole. The court, on submission, entered a decree, ordering, adjudging and decreeing "that the assignments of demurrer, made by respondents, 'that the bill is without equity' are well made and are each separately and severally sustained."

It is here earnestly insisted by appellees that a demurrer is "an entity in pleading, and its grounds are but reasons why the major premise of the demurrer should be made effective," and, if any ground of demurrer is well taken, a reversal of a judgment sustaining the demurrer cannot be had, notwithstanding the chancellor's ruling is predicated upon a ground that may not be well taken. In support of appellees' contention we are referred to the cases of Steiner v. Parker, 108 Ala. 357, 19 So. 386, and Patten v. Swope, 204 Ala. 169, 85 So. 513.

The insistence of appellant is that, inasmuch as the decree sustains the demurrer to the bill on the sole ground that "the bill is without equity," and having thus confined its effect, only grounds of demurrer attacking the sufficiency of the bill as a whole will be considered on this appeal. In support of appellant's contention we are referred in brief to the cases of Penton v. Brown-Crumner Inv. Co., 222 Ala. 155, 131 So. 14; Oden v. King, 216 Ala. 504, 113 So. 609.

In the case of Sandlin et al. v. Anders et al., 210 Ala. 396, 98 So. 299, 303, the grounds of demurrer assigned included the general demurrer, and other grounds directed to the bill as a whole, as well as grounds directed to separate parts of the bill. The trial court sustained the general demurrer, and decreed there was no equity in the bill, and dismissed it as to the respondents whose demurrer was sustained. On rehearing here, this court held:

"A decree sustaining a demurrer to a part of a bill, has the effect of striking that part. The complainant may thereupon so amend the part stricken as to give the bill equity in that regard, or he may by express amendment, eliminate the portion stricken by demurrer, or, if the bill still contains equity, may proceed thereon without amendment as if the defective feature had been stricken on motion. [Abrams v. Abrams, 225 Ala. 622, 144 So. 828.] Pollak v. Stouts Mountain C. & C. Co., 184 Ala. 331, 63 So. 531; 21 C.J. 452.

"Where, as in this case, the decree expressly sustains the general demurrer going to the equity of the bill as a whole, and dismisses the same as to the demurrants, no reference being made in the decree to the grounds of demurrer going to parts of the bill, it must be taken that the trial court did not consider nor pass thereon. They are not here presented for review."

To the same effect is the holding of this court in the case of Hunter-Benn & Co. v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348.

It was not the purpose of this court in the Sandlin Case, supra, nor in the Hunter-Benn Co. Case, supra, to hold that we would only consider the general demurrer attacking the bill, and not other grounds of demurrer going to the bill as a whole, in cases where there was a general demurrer as well as other grounds addressed to the bill as a whole, simply for the reason that the trial court saw proper to predicate his holding upon one designated ground of demurrer to the whole bill. The rule announced by this court in the above cases was that the court would confine its consideration to those grounds of demurrer which were addressed to the bill as a whole. If any ground of demurrer addressed to the bill as a whole was good, the trial court would be upheld in sustaining the demurrer, notwithstanding the fact that the court may have predicated its ruling upon a ground not well taken. To this extent counsel for appellee is sustained by the previous rulings of this court. Steiner v. Parker, supra; Patten v. Swope, supra. We are therefore at liberty to consider all grounds of demurrer, which were assigned to the bill as a whole.

The initial or preliminary ordinance adopted by the town council of the town of Elba on January 24, 1927, seems to comply fully with the statute law on the subject, and at the same time it fully observes the mandate of the Constitution, § 223, in limiting the assessments against the property to special benefits derived from the improvements. The ordinance expressly provides: "That the cost of construction, making and providing the improvements aforesaid shall be assessed against the abutting property according to frontage, one-half to each side of the street, avenue or highway so improved, in the manner provided by law in such cases; and the costs of that part of the crossings or intersections shall be distributed on said abutting property for a distance of half a block each way, as provided by law; provided, however, that no assessment shall be made on any piece or [of] property in excess of the enhanced value of the same by reason of the special benefits derived from such improvement."

Then follows a provision, as to Simmons street, that the cost of that part of the improvement shall be credited or reduced by whatever sum the state highway department may contribute to it.

Section 5 of the ordinance provided: "That the town council of the Town of Elba will meet on the first day of March, 1927, at 6:30 P. M. at the council chamber of said Town to hear and consider any and all objections, protests and remonstrances which may be made against said improvements, the manner of making or paying for the same or the materials to be used therein; and that notice of the ordinance of said meeting be given as provided by law."

It appears from the certificate of the clerk of the town of Elba that the said ordinance was published and appeared in the Elba Clipper, a weekly newspaper published in the town of Elba, Ala., on the 10th day and the 17th day of February, 1927. It nowhere appears that a copy of said ordinance was sent by registered mail, postage prepaid, to the persons last assessing for city or town taxation the property which might be assessed for said improvements at their last-known addresses.

In the case of City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, 177, this court held that "The preliminary notice, and all those other steps preliminary to the notice of the assessment and the assessment itself, * * * are provisions of legislative grace. Being written in the statute, they must be observed or the property owner may at the final hearing have the benefit of the omission of such of them as may be considered essential where there has been no waiver. But their omission may be waived. 'A party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection."'

The failure to send copies of the original notice by registered mail to the property owners abutting the streets to be improved, and who would be affected thereby, was not a jurisdictional matter, as the proceedings up to that time had not assumed a judicial aspect. Being a matter of legislative grace, the failure to send copies of the ordinance by registered mail to abutting property owners could be, and was, in fact, waived by such property owners who did not insist upon an abatement of the proceedings on account of such failure. N. C. & St. L. Rwy. Co. v. Town of Boaz (Ala. Sup.) 147 So. 195; City of Birmingham v. Wills, supra; City of Mobile v. Smith, 223 Ala. 480, 136 So. 851.

It appears from the bill as amended that the town council of the town of Elba met at the council...