Southern Surety Co. v. Jay
| Decision Date | 19 November 1918 |
| Docket Number | 8313. |
| Citation | 178 P. 95,74 Okla. 213,1918 OK 628 |
| Parties | SOUTHERN SURETY CO. v. JAY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 4, 1919.
Syllabus by the Court.
The passage and publication of a preliminary resolution of intention to pave are the acts by which a city council acquires jurisdiction to make such improvement; and, in the absence of such preliminary resolution of intention to pave being adopted and passed as required by law, the council does not acquire jurisdiction to make such improvement and levy an assessment against the property adjacent to such improvement for the payment thereof.
The city council of Muskogee, Okl., made an assessment against all of block 419 to pay for pavement fronting and abutting on the west side of said block. Held, that said city council was without jurisdiction to assess the east half of said block for improvement fronting and abutting on the west half only.
The period of limitation provided in section 644, Rev. Laws 1910 within which an action may be brought to set aside a special assessment made against lots abutting upon a street to pay the cost of paving said street, is not applicable as a bar to an action to enjoin the collection of such assessment when the proceedings upon which it is based are void.
Commissioners' Opinion, Division No. 2.
Error from District Court, Muskogee County; R. P. De Graffenreid Judge.
Action for injunction by Maggie Jay and others against the City of Muskogee, the Southern Surety Company, and others. Judgment for plaintiffs, its motion for new trial overruled, and the Southern Surety Company brings error. Affirmed.
O. L Rider, of Vinita, for plaintiff in error.
William Neff and L. E. Neff, both of Muskogee, for defendants in error.
This action was begun in the district court of Muskogee county, Okl., by Maggie Jay, T. F. King, and Gertrude B. Hudson, defendants in error, hereinafter referred to as plaintiffs, against the City of Muskogee, a municipal corporation, Charles Wheeler, Jr., city clerk, Connell Rogers, county treasurer, and Southern Surety Company, defendants, for the purpose of enjoining the collection of certain special assessments levied against the property of plaintiffs located in block 419 in said city. The purpose of the assessments so levied against the property of plaintiffs in block 419 was to pay for the cost of paving East Side boulevard adjacent to this block.
There are two grounds stated by which the plaintiffs seek to have this assessment set aside. The first ground is that all of the property situated in block 419 is assessed to pay for the paving adjacent to this block, when only the west half of the block was subject to such assessment, if any of the assessment was valid. The second ground is that the entire assessment is void for the reason that there was no preliminary resolution of intention to pave East Side boulevard ever passed by the city council of Muskogee, Okl., and by reason thereof said council never acquired jurisdiction to make any assessment for the improvements adjacent to said property.
The Southern Surety Company was the only defendant that filed an answer or contested the relief sought by plaintiffs. The answer of said company set forth it was the owner of the special assessment bonds issued to pay for said paving; that the city council of Muskogee, Okl., had jurisdiction to make said assessment, and that said action to obtain the relief sought was not begun within 60 days after the passage of the ordinance making a final assessment to pay said special assessment bonds; that by reason of more than 60 days having elapsed before institution of the action by plaintiffs and the passage of the assessment ordinance, the cause was barred by limitation.
On these issues the cause was tried to the court, and a judgment entered in favor of plaintiffs and against defendants. A motion for a new trial was filed by the Southern Surety Company and overruled. From the action of the court in overruling this motion an appeal is prosecuted to this court for the purpose of review.
East Side boulevard extends north and south. The south end begins at the south side of East Okmulgee street and runs north to the south side of Lawrence street. The streets intervening between Okmulgee and Lawrence streets are as follows Beginning at the south end of the boulevard and running north are Broadway, Callahan, Dayton, Fredonia, Galveston, Houston, Irving, Jefferson, and Kankakee streets. Block 419 is located at the north end of the boulevard, and on the east side of the street. Block 419 is...
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