Schwend v. City of Birmingham

• Decision Date: 20 January 1927
• Docket Number: 6 Div. 723
• Citation: 215 Ala. 491,111 So. 205
• Parties: SCHWEND v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

111 So. 205

215 Ala. 491

SCHWEND v. CITY OF BIRMINGHAM.

6 Div. 723

Supreme Court of Alabama

January 20, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Proceeding by the City of Birmingham to enforce an assessment for street paving (commenced by the City of West End, which was subsequently, consolidated with the City of Birmingham) against Charles Schwend. From the judgment, defendant appeals. Affirmed.

Aird &amp Aird, of Birmingham, for appellant.

Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellee.

THOMAS J.

The right to a trial by jury, if duly insisted upon in a case like this, was indicated under the former statute in the City of Huntsville v. Pulley, 187 Ala. 367, 65 So 405. The effect of the change by the Acts of 1915, p. 824 was adverted to in Green v. Stephens, 198 Ala. 325, 73 So. 532.

No motion for a new trial is predicated on the denial of a written demand for a jury. The weight of authority is that error in granting or refusing a jury trial is not considered on appeal, unless brought to the attention of the court by a motion for a new trial and opportunity for correction given. Horlacher v. Brafford, 141 Ind. 528, 40 N.E. 1078; Ketcham v. Brazil Block Coal Co., 88 Ind. 515; Huffmond v. Bence, 128 Ind. 131, 27 N.E. 347; Abbott v. Inman, 35 Ind.App. 262, 72 N.E. 284; Childers v. First National Bank, 147 Ind. 430, 46 N.E. 825; Alley v. State ex rel. 76 Ind. 94; Meloy v. Weathers, 35 Ind.App. 165, 73 N.E. 924; Sone v. Williams, 130 Mo. 530, 32 S.W. 1016; Boyea v. Besch, 144 Minn. 254, 174 N.W. 894; Banning v. Hall, 70 Minn. 89, 72 N.W. 817. How ever this may be, we will examine the statute concerning the right of trial by jury in such a case.

Appellant's counsel advert to the statute providing a trial by jury on a due demand in writing (sections 8593-8597, Code of 1923), and that these statutes do not apply to a case as that before us. The appeal is taken under sections 2204-2209, Code of 1923, and it contains no provision for a jury, and the statute uses the words "the court shall hear." It is provided in sections 2208, 2209, of the Code:

"Upon hearing such appeal, the introduction of such transcript and papers shall be prima facie evidence of the correctness of such assessment, and that said property and persons are justly indebted to the city or town for the amount of said assessment. ***

"The said cause may be tried on the record without other pleadings and the court shall hear all objections of the property owner or owners to said assessment and the amount thereof; and shall determine whether or not such assessment exceeds the increased value of such property by reason of the special benefits derived from the improvement, and shall render judgment accordingly." Cox v. City of Birmingham (Ala.App.) 108 So. 622, Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325.

An examination of the record proper discloses that this case has remained on the dockets of the court for many years. The initial ordinance is of date of August 2, 1907; the final ordinance of date of July 20, 1910; and the bond for appeal or for costs "to the city court Birmingham," of date of August 3, 1910. On this bond, the certified transcript filed in the circuit court, July 23, 1914, shows the indorsement: "Note: The appellant demands a jury for the trial of this cause," signed by appellant's former counsel. This was before the Acts of September 25 and 28, 1915, pp. 824, 939. Following this record is defendant's sworn pleas of date of December 17, 1923; plaintiff's motion to strike, of date of December 19, 1923; and demurrers to plea of like date. These documents or pleadings in the circuit court contained no written demand for a jury trial. The transcript recites:

"Defendant's Motion for Jury.

"Now comes the defendant, and moves the court to transfer this case to the jury docket of this Court. Morris Loveman and Aird & Aird, Attorneys for the Defendant.

"Filed in office September 29, 1924.

"Defendant's Motion for Jury to Try Issues of Fact.

"Now comes the defendant, and objects to the trial of said cause by the court without a jury, as provided by law, and defendant moves the court to have a jury pass upon the issues of fact arising in the trial of said cause. Morris Loveman, Aird & Aird, Attys. for Defendant."

And in the amended transcript are contained the objections to the amended transcript, dated September 30, 1925; motion to strike of same date; and recital as to a jury trial:

"Jury Demand.

"Comes the defendant and demands a jury trial. Morris Loveman, Aird & Aird, Attorneys for the Defendant.

"Filed in office October 1, 1924.

"Demand for Trial by Jury.

"Now comes the defendant after the filing by the plaintiff of an amended transcript, and demands a trial by jury to determine the issues of fact arising in said cause. Aird & Aird, Morris Loveman, Attorneys for Defendant.

"Filed in office November 10, 1924."

We find in this record no due and timely demand in writing for a trial by jury, and we will not reverse the trial court on the trial of the contest without a jury.

The requirements of initial ordinances for street and sidewalk improvements are contained in Stovall v. Jasper (Ala.Sup.) 110 So. 317; Sanders v. Troy, 211 Ala. 331, 100 So. 483; Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325, and need not be repeated.

The Improvement Ordinance No. 13 for the city of West End (Alabama) to provide for building cement walks, putting in cement curbing and guttering, and paving with Lancaster McAdam pavement, "Hawkins street from McMillan avenue to Second avenue," was definite, and the notice and proceeding were as required by the statute. Section 2178 (1363) of the Code. It is of recent decision that records of local improvement assessment proceedings need not affirmatively recite that specifications were open to inspection in the office of the city engineer. The passage of the final resolution implies the finding of performance of such duty as directed by the statute and the initial ordinance. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325.

The proceeding offered in evidence was as required by the statute. Section 2199 of the Code. The court committed no error in admitting the transcript...