Palmer v. Town of Farmington Bd. of Improvement Dist. No. 1 of Town of Farmington v. Palmer.

• Citation: 179 P. 227,25 N.M. 145
• Decision Date: 28 January 1919
• Docket Number: Nos. 2081, 2082.,s. 2081, 2082.
• Court: Supreme Court of New Mexico
• Parties: PALMER et al.v.TOWN OF FARMINGTON et al.BOARD OF IMPROVEMENT DIST. NO. 1 OF TOWN OF FARMINGTONv.PALMER.

25 N.M. 145

179 P. 227

PALMER et al.

v.TOWN OF FARMINGTON et al.BOARD OF IMPROVEMENT DIST. NO. 1 OF TOWN OF FARMINGTON

v.PALMER.

Nos. 2081, 2082.

Supreme Court of New Mexico.

Jan. 28, 1919.

Syllabus by the Court.

Where actions are consolidated in the district court, and the order of consolidation provides that such actions are consolidated for the purpose of trial only, but thereafter the trial court and the parties treat the proceedings as a single case, and pleadings are filed as though but one case is pending, and the court enters a single judgment, from which but one appeal is prosecuted, it is not necessary to docket two appeals in this court.

A party may not, by imposing upon an adversary over the latter's protest, the consolidation of his suit providing for a limited appeal with that of his adversary's theretofore filed, providing a longer period of appeal, in which a single judgment is rendered, deprive said adversary of the full period of time for appeal applicable to the suit filed by such adversary.

Laws 1909, c. 31, an act relating to improvement districts in cities and incorporated towns, is constitutional.

Where one state or territory adopts a statute in force at that time in another state or territory, it also adopts the construction by the courts of such state or territory, unless for some good reason the courts of the state or territory adopting the statute should see proper to refuse to follow such decisions, as sound interpretations of the statute.

Laws 1909, c. 31, relative to local improvements in cities and towns, was taken from the statutes of the state of Arkansas. Section 2 of the act provides: “When any ten resident owners of real property in any such city or incorporated town, or any portion thereof, shall petition the city or town council to take steps toward the making of any such local improvement,” etc.; it thereupon being the duty of the city or town council to proceed as required in the construction of the improvement. This section of the statute was construed by the Supreme Court of Arkansas in the case of Board of Improvement, District No. 60, v. Cotter, 71 Ark. 556, 76 S. W. 552, as requiring the signers of the petition to be not only owners of real property within the district to be improved, but actual residents therein.

The word “resident” is used in the statute as an adjective, describing and defining the kind or class of owners, and if the petitioner must be an owner of real estate within the improvement district, where it embraces less than the limits of the municipality, he must likewise be the kind or class of owner described in the statute, namely, a resident owner.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Resident.]

Under the Code, parties to an action are required to state facts constituting their cause of action or ground of defense in their pleadings. An estoppel, to be available on the trial, must be specially pleaded, where there has been an opportunity for so pleading it.

Appeal from District Court, San Juan County; Abbott, Judge.

Suit for injunction by J. M. Palmer and others against the Town of Farmington and others, to have certain improvement assessments declared void and to enjoin their collection; and suit by the Board of Improvement District No. 1 of the Town of Farmington against J. M. Palmer and others, to collect such assessments. Cases consolidated for purpose of trial, and judgment for the town of Farmington and others, and the Board of Improvement District No. 1 of Town of Farmington and Palmer and others appeal. Reversed and remanded, with directions to enter judgment for appellants.

In the Code states, parties to an action must state facts constituting their cause of action or ground of defense in their pleadings.

A. B. Renehan, of Santa Fé (Carl H. Gilbert, of Santa Fé, of counsel), for appellants.

Frank A. Burdick, of Farmington, and A. M. Edwards, of Santa Fé, for appellees.

ROBERTS, J.

The town of Farmington, San Juan county, was incorporated prior to 1909. Appellant claims that Farmington was not an incorporated town but an incorporated village; that under the provisions of section 2452, C. L. 1897, it could not be an incorporated town, because having less than 1,500 inhabitants. Appellee, on the other hand, contends that by virtue of a subsequent statute it is an incorporated town, but this question is of no moment.

In August, 1909, a petition purporting to be signed by 10 resident owners of real estate in the town of Farmington was filed in the office of the town clerk, asking that a certain portion of the town be established as an improvement district under the provisions of chapter 31, Laws 1909, for the purpose of constructing standard cement sidewalks and crossings. Of those who signed the petition, only 2 were in fact resident real estate owners within the district sought to be formed. The remainder of the petitioners were owners of real estate within the improvement district, and, while residing within the town of Farmington, did not reside within the limits of the district. Purporting to act on the authority of this petition, the town council thereafter enacted an ordinance declaring the portion of the town referred to in the petition to be established as “improvement district No. 1 of the town of Farmington.” Appellant Palmer and others appeared before the meeting of the board at which this ordinance was enacted, and protested against the construction of any sidewalks in the district, on the ground that the same was not legally created, and also on economical grounds, but their protest was ignored. Petition was thereafter filed, purporting to be signed by owners of real estate in the improvement district representing a majority in the assessed value therein, asking that the improvement be made. Town council proceeded on the strength of this petition to appoint a board of improvement and assessment for said district. The cost of the improvement was apportioned between the various lots. Bonds were issued and sold, and the improvement was completed. The original assessment was insufficient, and a new board of assessment was afterwards appointed, which reassessed the property, by adding a certain percentage to each original assessment.

Two suits were thereafter instituted-one by the board of improvement, to collect the assessments from appellants, and one by the appellants, to have the assessments declared to be void, and the appellees enjoined from collecting the same. The injunction suit was the first filed, and later the improvement district filed the subsequent suit to collect the assessments. These cases were, over objection of appellants, consolidated in the lower court; the decree of consolidation stating that they were consolidated for the purpose of trial. But after the order of consolidation the two cases were treated by the court and the parties as but one case, and but one judgment was rendered by the court.

The theory of appellants' complaint in the injunction suit was that chapter 31, Laws of 1909, did not apply to the town of Farmington, in that it had less than 1,500 population; second, that the town council of Farmington had no jurisdiction to proceed with the formation of the improvement district, because the initial petition had not been signed by 10 resident property owners within the district; third, that the second petition had not been signed by a majority in value of the property owners within the district; and, fourth, that the improvement district law of 1909 was unconstitutional. The same facts were set up as a defense in the consolidated suit. The trial court found that the initial petition had been signed by 10 property owners within the improvement district, and that such property owners were residents of the town of Farmington, and held that under the statute the petitioners were not required to be actual residents within the improvement district, but were required only to be property owners therein and residents of the town. On all the other points the court found against the appellants, and a judgment was entered dissolving the temporary injunction theretofore issued, and giving the board of improvement of the district judgment against the appellants for the amounts due under the assessments made. From the judgment an appeal was prayed and a supersedeas bond given.

[1] In this court appellants attempted to docket the appeal as one case, but were informed by the clerk of the court that it would be necessary, under the holding by this court in the case of Clark v. Insurance Co., 22 N. M. 368, 163 Pac. 371, to docket two appeals. Appellees have filed a motion to dismiss the appeal in cause No. 2081, which was the injunction suit filed by Palmer against the town of Farmington and the improvement district; but from the brief filed by them in support of the motion we take it that the purpose of the motion was to procure the dismissal of the appeal of the consolidated cause. The theory of the appellees in seeking the dismissal of the appeal was that the appeal had not been prosecuted within 20 days after the rendition of the said decree. The improvement district law (chapter 31, Laws 1909) provides for the institution of suit by the board of improvement to collect any unpaid assessment, and in any such suit by section 61 it is provided that-

On appeal said “transcript shall be filed in the office of the clerk of the Supreme Court, within twenty days after the rendering of the decree appealed from.”

And by section 64 it is provided:

“No appeal shall be prosecuted from any decree after the expiration of the twenty days herein granted for filing the transcript in the clerk's office of the Supreme Court.”

Appellees conceded that in the injunction suit appellants would have the regular time for taking the appeal and filing the transcript, but that as to the suit by the board of improvement the time would be limited to 20 days.

As...