Peoples v. State Sec. Bank

• Citation: 119 So. 226,218 Ala. 534
• Decision Date: 20 December 1928
• Docket Number: 4 Div. 376
• Parties: PEOPLES v. STATE SECURITY BANK.
• Court: Supreme Court of Alabama

119 So. 226

218 Ala. 534

PEOPLES v. STATE SECURITY BANK.

4 Div. 376

Supreme Court of Alabama

December 20, 1928

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Bill to enforce statutory lien for collection of local assessments by the State Security Bank against J.E. Peoples. From a decree for complainant, respondent appeals. Affirmed.

A.R Powell, of Andalusia, for appellant.

O.S Lewis, of Dothan, for appellee.

BOULDIN J.

The bill was filed by the holder of municipal improvement bonds of the town of Opp. The purpose of the bill is to enforce the statutory lien for collection of local assessments for sanitary sewers upon which the bonds were issued.

There was decree for complainant, and respondent, the property owner, appeals.

The defense, in the main, goes to the existence of a lien involves a collateral attack upon the proceedings leading to and effectuating an assessment.

Improvement ordinances in due form, notice and hearing upon the advisability of undertaking the improvement according to plans, specifications, maps, and profiles approved by the council, letting contract, completion and acceptance of the improvement, all sufficiently appear of record. These proceedings down to the making of an assessment roll are not challenged. Jurisdiction of the subject-matter to proceed with the judicial function of making assessments thus appears. That an assessment roll was prepared, notice and hearing thereon given, and the assessments made final also appear of record. No objection was interposed by the property owner here involved, nor appeal taken.

The assessment therefore has all the effect of a consent judgment under our law. Only matters rendering the judgment void, and not subject to waiver by the property owner, are now available to him.

The assessment is shown upon the assessment roll (rearranged for ready inspection) as follows:

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Name. Lots. Block. Street. Assessment.

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Peoples J.E. 18 to 20 34 Park Avenue $63.24

Peoples J.E. 5 to 6 25 Ida Avenue $34.00

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It appears in pleading and proof that the lot and block numbers are according to a map made by the engineers of J.B. McCrary Company, the contractor, and labeled, "Assessment Map of Opp, Alabama, for Sanitary Sewers."

Appellant complains that this is in violation of Code, § 2207, requiring the property described according to a map in common use, if there be such map. It appears there was a map in common use, and the assessment map did not follow same in numbering the blocks.

The law contemplates maps and profiles of municipal improvements as part of the records for inspection of property owners in the several hearings. In case of sewers such map may furnish the data on which the notice required by Section 2194 may be properly given. It appears a preliminary map was filed before the final improvement ordinance. The "assessment map" was made thereafter and was used in construction work and in making assessments.

This assessment map shows not only the layout of the sewer system, but gives the names of streets, the numbers of blocks and lots. The name of each property owner is written upon his lot.

We see no good reason to say the city authorities are without authority to adopt or use such map. On the contrary, it is entirely in keeping with the general scheme of local assessments that all the data relating to the assessment, who is due to pay it, and the property subject thereto, should appear in the municipal records without resort to outside means of identification. In making such map, the plat laying out and dedicating streets and numbering lots and blocks should be followed if available. The statute so intends for obvious reasons. But, as in many other provisions, this requirement is directory. When the landowner consents to a different description, if sufficient to identify the property, he is estopped to set up a departure from the statute in this regard. If objection thereto was made as provided by law, and appeal taken, the circuit court under the statute would have full authority to make the description conform to the directions of the statute. In the recent case of Cabaniss v. City of Huntsville, 217 Ala. 678, 117 So. 316, it was declared the city clerk, in preparing the transcript for appeal, is without power to amend the assessment proceedings in matters of description, and struck out the amended description because not sustained by the evidence, and not for want of authority in the circuit court to render a proper assessment decree.

The original assessment roll has been lost by fire. Whether it contained any reference to the assessment map does not appear. Without question this map was used in making the assessment, and the map identifies itself with the assessment appearing on the assessment roll.

Complaint is made that the map does not show the dimensions of lots the bearing of lines, nor the scale on which it is drawn. It shows established streets outlining each block. By...