Kirwin v. Nevin

• Court: Kentucky Court of Appeals
• Writing for the Court: GUFFY, J.
• Citation: Kirwin v. Nevin, 111 Ky. 682, 64 S.W. 647 (Ky. Ct. App. 1901)
• Decision Date: 08 October 1901
• Parties: KIRWIN et al. v. NEVIN. [1]

64 S.W. 647

111 Ky. 682

KIRWIN et al. v. NEVIN. ^[1]

Court of Appeals of Kentucky.

October 8, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by Joseph Nevin against Mary E. Kirwin and others to enforce a lien for the cost of a street improvement. Judgment for plaintiff, and defendants appeal. Reversed.

Matt O'Doherty, for appellants.

H. M Lane, for appellee.

GUFFY J.

On the 7th of November, 1893, the appellee, Joseph Nevin, filed his petition against the appellant and others in the Jefferson circuit court, chancery division, in which it is alleged, in substance, that on July 18, 1884, an ordinance was passed for improving a part of Dumesnil street. A description of the improvement is then set out, and various other allegations are made, the object of which is to show the legality of the ordinance and its due publication. The petition also shows that he was an accepted bidder to make the improvements ordered. The petition also shows that the work was done according to contract, and accepted by the city, and an apportionment warrant issued. It was further averred that, by the apportionment, the defendant E. E. Kirwin was reported as the owner of the lot of land described herein, whereas the true fact was and is that the defendant Mary E. Kirwin was on and prior to November 12, 1884, and ever since has been and is, the owner in fee of said lot of land; that the apportionment as made out by the engineer was, on the 26th of November, 1884, reported to the general council, and was by the council examined and approved, and thereupon there was duly passed by the general council a resolution, approved November 29, 1884, whereby it was resolved that the clerk of the board of councilmen should, and the clerk did, issue and deliver to plaintiff apportionment warrants in the amounts and against the persons named as the owners and specified in the apportionment warrants by the said city engineer; that by the apportionment as made out, the sum of $327.54 was reported as and was the share or proportion chargeable against the owner of the lot of land described herein, and for which amount the clerk of the board issued and delivered to plaintiff a warrant against the defendant E. E. Kirwin, as if he were the owner of the lot of land hereinbefore described, and on which the plaintiff instituted an action against said Kirwin to enforce the lien against him as the owner of the lot, and obtained judgment enforcing said lien but afterwards discovered that said lot of land was the property of defendant Mary E. Kirwin, and the same through this plaintiff was made known to the city of Louisville, whereupon there was duly passed by the general council of the city of Louisville a resolution approved by the mayor of said city October 2, 1893, whereby it was resolved that the clerk of the board of councilmen should, and he did thereupon, issue and deliver to this plaintiff a warrant against the defendant Mary E. Kirwin for the said sum of $357.24, which is filed herewith as part hereof, and is due, with interest at the rate of six per cent. per annum from October 2, 1893. The defendants entered a general demurrer to the petition, which was overruled. On 28th of November, 1894, the defendants filed their answer, which is a traverse of most of the averments of the petition, except as to the making out of the apportionment warrant in 1884 and the suit thereunder. They also plead the judgment and sale as a bar to this suit as well as a denial of the authority of the city council to pass the resolution in 1893 or to make out the apportionment warrant now filed with this suit, and denied that the plaintiff had any lien on the lot in question. The second paragraph pleads and relies on the statute of limitation as a bar to plaintiff's action. Plaintiff filed a demurrer to the second paragraph of the answer and also filed a reply controverting the statute. Afterwards, the defendants filed an amended answer and counterclaim, in which it is specifically pleaded that the plaintiff brought suit against E. E. Kirwin for a sale of the lot in question, and that no defense was made by any person to it, and that the plaintiff obtained a judgment for sale of the lots to satisfy the claim herein sued on, and that the sale was duly made, and that plaintiff bid therefor the amount of his debt, interest, and cost, and that the sale was confirmed and deed made to plaintiff. She also made her answer a counterclaim, and prayed judgment against the city of Louisville for damages done to her lot. But that question is not before us for revision. The plaintiff, for reply to the amended answer, states that no part of the lot was ever the property of E. E. Kirwin, and that he had no interest in it, and that the proceedings were instituted and had by him by mistake, and says they are all void. The court, upon final hearing, adjudged in favor of the plaintiff, and adjudged a sale of the land in satisfaction of the claim, and from that judgment this appeal is prosecuted.

It is insisted for appellant, among other things, that the suit and judgment obtained by plaintiff in...