Goodrich v. City of Detroit

• Decision Date: 27 March 1900
• Court: Michigan Supreme Court
• Parties: GOODRICH et al. v. CITY OF DETROIT et al.

82 N.W. 255

123 Mich. 559

GOODRICH et al. v. CITY OF DETROIT et al.

Supreme Court of Michigan

March 27, 1900

Appeal from circuit court, Wayne county, in chancery; Willard M Lillibridge, Judge.

Bill by John C. Goodrich and another against the city of Detroit and another to enjoin the collection of a special tax for a street improvement. From a judgment in favor of defendants plaintiffs appeal. Affirmed.

Bacon & Yerkes, for appellants.

C. D Joslyn, for appellees.

LONG J.

The facts are sufficiently set out in the opinion of Judge Lillibridge, who heard the case in the court below. We adopt the opinion. It is as follows:

'The bill in this case is filed to enjoin the collection of a special tax levied for the opening and extending of Milwaukee avenue between Chene street and Mt. Elliott avenue, 60 feet wide. The proceedings were taken under the general act (chapter 83, 3 How. Ann. St.), as amended. The complainants are not persons whose lands were taken by the proposed opening, and consequently they were not parties to the proceeding for the opening of said street, but they are owners of land within the assessment district authorized by section 3064o, Id., and therefore, so far as the bill filed in this cause seeks to impugn the opening proceedings prior to the verdict and judgment, it is a collateral attack upon such proceedings. Several grounds are urged why the assessment should be held void:

'First. That the petition for opening the street and the verdict of the jury rendered in said cause do not describe the several parcels of land to be taken for such improvement. The statute (3 How. Ann. St. � 3064c) provides that the petition shall contain a description of the property to be taken, and, generally, the nature and extent of the use thereof that will be required, and also the names of the owners and others interested in the property, so far as can be ascertained. The statute also requires the jury, by their verdict, to award to each of the owners and persons interested a just compensation for the property taken. The cases cited in complainants' brief relate chiefly to the opening and laying out of drains or to proceedings for condemning land for railway purposes. The requirements as to the description of the lands proposed to be taken in those cases are found in 1 How. Ann. St. �� 1696, 3332, and are essentially different from that above quoted. The statute in those cases requires substantially that each distinct parcel of land shall be described, whereas it will be seen that in the case of street opening there is no such requirement. Moreover, the cases cited are those in which the question was raised by the landowners in the direct action on appeal or by writ of error or certiorari, and not collaterally by other persons than the owners of the land, as in this case. These authorities are not, therefore, in my opinion, applicable to the case of street openings and to a collateral attack upon such proceedings. In this case the petition in the first column describes with substantial accuracy all the land to be taken for the proposed opening. This is subject to one qualification. In one description of land in the first column, in describing a course or direction, there is a clerical error. Instead of the course running 'north, 64 east,' as is correct, the description reads 'south, 64 west.' All the other descriptions containing the same course or direction read correctly, viz. 'north, 64 east.' That this is a clerical error is proved by the fact that the original manuscript description on file reads correctly, to wit, 'north, 64 east.' Attached to the petition, also, is a carefully prepared plat of all the land proposed to be taken. This plat is made according to scale, and certified to by the city engineer, and shows the original lots and descriptions, with dimensions, and the part proposed to be taken is in colors, with dimensions of every parcel of land to be affected, and is correct in every particular. This plat is referred to in the petition, and made a part thereof; but in the second column of the petition, wherein it was attempted to subdivide and apportion the general description contained in the first column among the several owners, there are some inaccuracies of description. These several owners were all made parties defendant, and appeared and made no objections to such inaccuracies or errors of description of their property. They made no objection whatever to the jurisdiction or to proceeding in the case. They introduced testimony as to the value of their lands which would actually be taken, as shown by the plat, and the jury awarded them severally such damages as they would suffer, as shown by the plat. The descriptions in the verdict are the same as in the petition. The verdict also refers to the plat in a finding that it is necessary to take the private property described in the petition in this cause. Judgment was duly entered confirming the verdict, and no appeal has been taken therefrom, and the time for appeal has expired. It was stated on the argument that all of the different persons whose lands were taken have received and accepted their awards as per the verdict, and have executed conveyances to the city of the lands actually taken. The question before me is not whether some or any of those defendants, the owners of land taken, might have enjoined the city of Detroit from proceeding to take possession of lands so inaccurately described, for they have all submitted to the jurisdiction and the verdict, and received their awards; but the question is whether other persons, these complainants, whose lands were not taken, but which are within the assessment district made to pay for the said opening, can take advantage of such irregularities and inaccuracies to enjoin the collection of the said tax. It is well established that a judgment can be attacked collaterally only for want of jurisdiction. Did the recorder's court, therefore, have jurisdiction of the proceeding to make the

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