Grant v. City of Birmingham

• Citation: 97 So. 731,210 Ala. 239
• Decision Date: 18 October 1923
• Docket Number: 6 Div. 923.
• Parties: GRANT v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

97 So. 731

210 Ala. 239

GRANT v. CITY OF BIRMINGHAM.

6 Div. 923.

Supreme Court of Alabama

October 18, 1923

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill by Wheadon M. Grant, against the city of Birmingham. From a decree sustaining demurrer to the bill as amended complainant appeals. Affirmed.

Brenton K. Fisk, of Birmingham, for appellant.

W. J Wynn and W. A. Jenkins, both of Birmingham, for appellee.

PER CURIAM.

In this case Wheadon M. Grant, complainant, sued the city of Birmingham, a municipal corporation, respondent, in a statutory bill to quiet the title to a certain lot in Birmingham, requiring the respondent to set forth and specify its title, claim, interest, or incumbrance upon the land, and by what instrument the same is derived and created. The bill was defective for its failure to aver that no suit was pending to test the right, title, claim, or interest of the respondent. The point was taken by demurrer against the bill and the demurrer was sustained. The bill in due course was amended by the addition thereto of sections 6, 7, 8, 9, and 10, together with an addition to the prayer. Demurrer to the bill as thus amended was sustained, and complainant appeals.

The gist of Grant's complaint is that the street assessment made by the city of Birmingham and against his lot is illegal, because his lot does not abut on Sixteenth street which was improved. While the proceedings relating to the improvement and the assessment against the lot are not set out in full in the bill, it is averred that the improvement was made under ordinance adopted in June, 1921, and that the city undertook to establish a lien against the lot for the improvement. On hearing on demurrer it is assumed, in the absence of express averments to the contrary, that the city's proceedings were under existing statutes relating to municipal improvements and improvement assessments (Code, §§ 1359-1420), and that the proceedings were regular.

Taking the bill on the face of it, with the constructions and presumptions necessarily indulged against the pleader, there has been a regular proceeding under the statutes by the city of Birmingham, as a result of which Sixteenth street has been improved, and Grant's lot has been assessed for a portion of the cost of the improvement, and Grant has either (1) failed to comply with section 1381 of the Code by appearing and filing a written objection to the assessment, or (2) if he did file proper objection in writing, (and this is not alleged in the bill) he has failed to appeal from that action of the city in fixing the assessment against his written objection, or (3) if he did so appeal, the decision has gone against him on appeal. In other words, section 6 of the bill avers that no suit is pending to test the validity of the city's lien, and it necessarily follows that the assessment has gone by default without Grant's objection made in the manner and form required by law, or else that he has not litigated, or that the litigation has been decided against him. In either event complainant is precluded from setting up his complaint in this action. He is bound by the statutory estoppel covered in section 1381 and the succeeding sections of the Code. He cannot bring this collateral attack against the adjudication already made by municipal authority. Brock v. Decatur, 185 Ala. 146, 64 So. 73; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann Cas. 1915B, 746; City of Woodlawn v. Durham, 162 Ala. 565, 50 So. 356; Day v. Montgomery, ...