Moss v. Andrews Asphalt Paving Co.

• Decision Date: 10 May 1929
• Citation: 229 Ky. 419,17 S.W.2d 255
• Parties: MOSS et al. v. ANDREWS ASPHALT PAVING CO. et al. (two cases).
• Court: Kentucky Court of Appeals

17 S.W.2d 255

229 Ky. 419

MOSS et al. v. ANDREWS ASPHALT PAVING CO. et al. (two cases).

Court of Appeals of Kentucky

May 10, 1929

Appeals from Circuit Court, Franklin County.

Separate actions, heard together, by the Andrews Asphalt Paving Company and others against Dulin Moss and another. Judgments for plaintiffs, and defendants appeal. Affirmed in part, and in part reversed, with instructions.

B. T Quinn and Dulin Moss, both of Frankfort, for appellants.

James H. Polsgrove, Morris & Jones, and Frank M. Dailey, all of Frankfort, for appellees.

DIETZMAN J.

These two cases were heard together in the lower court and in this court. As in the main they involve the same questions, they will be disposed of together by this opinion.

These suits were brought by the appellee, Andrews Asphalt Paving Company, against the appellants, Dulin Moss and his wife, to recover on two apportionments for street improvements made in front of two lots owned by the appellants in the city of Frankfort. One of these lots is on Main street, between High and Ann streets. The other of them is at the northwest corner of Todd street and Capital avenue. We shall refer to these two cases as the Main Street Case and the Todd Street Case according to the lot involved in the particular case under discussion. The lower court gave judgment in each case for the appellee, not only enforcing the lien of the apportionment on the lots involved, but also fixing a personal liability upon the appellants for the amount of the apportionments. From these judgments these appeals are prosecuted.

So far as the judgments gave the appellee a personal judgment against the appellants, they are erroneous, and to that extent they will have to be reversed. In this character of cases, no personal judgment can be given against the lot owner, and the apportionment must be satisfied by the enforcement of the lien against the property therefor. Ormsby v. City of London, 220 Ky. 148, 294 S.W 1025. We are of opinion, however, that the grounds relied upon for a reversal of these judgments in all other respects, save one in the Todd Street Case, cannot be sustained. In their consideration, we shall first address ourselves to the Todd Street Case.

Todd Street Case.

The ordinance providing for the improvement of Todd street authorized its improvement from Steele to Murray streets, but when the council came to let the contracts for the work it split the authorized improvement into three projects, the first covering Todd street from Steele to Shelby streets, the second Todd street from Capital avenue to Murray street, and the third Todd street from Shelby street to Capital avenue; this last being the one involved in this case. The contracts were let accordingly. Appellants complain of this division of the authorized improvement and insist that the council had no right to divide it up in this fashion. This contention was held untenable in the case of Andrews Asphalt Paving Co. v. Brammel, 221 Ky. 323, 298 S.W. 956.

Appellants contend next that the contract for the improvement of Todd street in front of their property was void because the city of Frankfort at the time of its letting was too deeply in debt to incur any liability under the Constitution for street intersections, which the ordinance, by which the improvement was authorized, provided should be borne by the city. However, there were no street intersections involved in this contract. The one at Shelby and Todd streets had theretofore been constructed and the intersection at Capital avenue was not provided for or made. Hence there is nothing upon which appellants can base this contention with reference to this Todd street improvement.

Appellants say next that it was not shown that the letting of this work had been duly advertised, or that proper bids had been taken. They did not rely upon this in their pleadings. Kentucky Statutes, § 3457, in part provides that, in actions to enforce the lien of an apportionment, a petition which in substance avers that the improvement has been made and the work accepted pursuant to and by ordinances of the city duly passed in accordance with law, shall be a sufficient pleading of the ordinances and proceedings under which the work was done and accepted, without setting the same out in full. It necessarily follows that, if the lot owner wishes to rely upon any such failure or defect in the proceedings as appellants say here was the case, it devolves upon him to set it up in his answer. Since appellants failed to do this, their contention in this regard cannot be upheld.

The next contention of the appellants is that the city engineer had not made the estimate of the total cost of this work and apportioned it as required by the statute. Kentucky Statutes, § 3455. Under the pleadings in this case, this question was in issue. The ordinance apportioning the cost of this work was introduced in evidence, and by section 1 recites that the engineer's estimate of the cost of improving Todd street was approved. In this state of the record, the court will, at least in the absence of any competent evidence to the contrary, presume that the city engineer performed the duties enjoined upon him by law. See Board of Education of City of Jackson v. Caudill, 228 Ky. 652, 15 S.W.2d 452. There is no competent evidence in this record to overcome this presumption, and this contention of the appellants will also have to be denied.

They next say that the contract was invalid because the street improvement stopped some 10 feet short of the intersection of Capital avenue and Todd street. The ordinance under which the improvement was had provided that the work should be done in accordance with the plans and specifications on file. It is not shown that the plans and specifications did not provide for the construction of this street just as it was constructed. On the contrary, the engineer of the appellee testified that the street had to be constructed as it was, because of the difference in the grades of Todd street and Capital avenue, and of the necessity of adjusting these grades to each other when Capital avenue is reconstructed. Under section 3454 of the Statutes, the city council has the right to determine what streets or parts thereof shall be improved, and also the extent and character of the improvement. Under a similar statutory provision, the power of the council of the city of Paducah to provide for the paving of a street on either side of a strip 26 feet wide in the center was upheld in the case of Reed v. City of Paducah, 224 Ky. 524, 6 S.W.2d 681. That case contains a collection of the authorities bearing on the point.

There is no real distinction between the right to determine what part of the width of a street shall be improved and what part of the length shall. Since it is not shown that the street was not constructed according to the plans and specifications to which the ordinance referred, there is no merit in this contention of the appellants. However, in this connection appellants' argument is sound that the lower court should have given a lien for this apportionment on...