Herbert C. Heller & Co. Inc v. Duncan, 6932.

• Decision Date: 09 June 1931
• Docket Number: No. 6932.,6932.
• Citation: 159 S.E. 52
• Court: West Virginia Supreme Court
• Parties: HERBERT C. HELLER & CO., Inc. v. DUNCAN et al.

159 S.E. 52

HERBERT C. HELLER & CO., Inc.

v.DUNCAN et al.

No. 6932.

Supreme Court of Appeals of West Virginia.

June 9, 1931.

Syllabus by the Court.

An erroneous decree, consented to, is not appealable.

Syllabus by the Court.

A city charter which provides that all taxes assessed on real estate within the municipality shall constitute a lien thereon prior to all other liens, except for taxes due the state, county, or district; that paving assessments against abutting property shall be continuing tax liens thereon; and that sewer assessments against abutting property shall constitute liens thereon prior to all other liens, except for state, county, and municipal taxes, thereby places paving and sewer assessment liens upon an equality.

Syllabus by the Court.

The rule, in the absence of statu\jry provision to the contrary, that liens take precedence in order of time is applicable to successive liens of assessments for local improvements. i

Appeal from Circuit Court, Wayne County.

Suit by Herbert O. Heller & Co., Inc., against P. O. Duncan and others, to enforce a sewer assessment lien. From a decree confirming a commissioner's report, plaintiff appeals.

Affirmed.

Philip P. Gibson, of Huntington, for appellant.

R. P. Asbury, of Huntington, for appellees.

Carl O. Douthit, of Huntington, W. Va. amicus curiae.

L1TZ, P.

This suit, brought to enforce sewer assessment liens against abutting property in the city of Huntington, involves the question of priority between such liens and paving assessment liens, under the municipal charter. The plaintiff, Herbert C. Heller & Co., Inc., is the owner of four sewer certificates, aggregating, with interest, $252.96, secured by liens against four several lots of land in said city, created and perfected in 1927. Defendant W. E. Karr is the holder of four paving certificates, aggregating, with interest, $1,152.44, secured by liens created and perfected against the same property in 1925. Karr came into the suit by petition after a report of the commissioner in chancery, finding that the sewer liens were prior to all other liens against the property, had been confirmed and sale of the property directed. After being so admitted as a party defendant, the cause was recommitted to the commissioner, who later reported that the paving liens were prior in dignity to the sewer liens asserted by plaintiff. Plaintiff prosecutes an appeal from a decree confirming this report, on the grounds (1) that the cause was improperly recommitted upon the filing of the petition of defendant Karr; (2) that sewer Hens are superior to paving liens under the city charter; and (3) that successive liens of assessments for local improvements are accorded priority in the Inverse order of time, so that "the last shall be first and the first last."

The decree complained of, recommitting the cause, was entered after it had been indorsed by counsel representing all of the parties: "The foregoing order is hereby consented to." An erroneous decree, consented to, is not appealable. Hounshell v. Hounshell, 116 Va. 675, 82 S. E. 689.

Section 67 of the charter, dealing with the paving lien, provides that it "shall be a continuing tax lien upon the lot or ground against which the assessment is made until the certificates * * * are paid, except as otherwise provided in this act." Section 68, creating the sewer lien, states that "all assessments made under this section shall constitute and be a lien upon the lots or lands, respectively, which shall have priority over all other liens except for...