Wimberly v. Cowan Inv. Corporation, No. 7732.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtFOSTER, HUTCHESON, and WALKER, Circuit
Citation80 F.2d 452
PartiesWIMBERLY et al. v. COWAN INV. CORPORATION et al.
Docket NumberNo. 7732.
Decision Date25 November 1935

80 F.2d 452 (1935)

WIMBERLY et al.
v.
COWAN INV.
CORPORATION et al.

No. 7732.

Circuit Court of Appeals, Fifth Circuit.

November 25, 1935.


80 F.2d 453

W. L. Chenault, of Russellville, Ala., and F. E. Throckmorton, of Tuscumbia, Ala., for appellants.

T. E. Twitty and Wm. H. Armbrecht, both of Mobile, Ala., Wm. Alfred Rose and Douglas Arant, both of Birmingham, Ala., John E. Deloney, Jr., and J. T. Kirk, both of Tuscumbia, Ala., G. W. L. Smith, of Brewton, Ala., and Wm. J. Rielly, of Cincinnati, Ohio, and J. Edward Thornton, of Birmingham, Ala., for appellees.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

After the filing in the court below of bills in equity by different owners of bonds issued by the city of Tuscumbia, Ala., praying relief which included the enforcement of assessments for street and sewer improvements in that city, which assessments were alleged to have been transferred and assigned by said city for the benefit of holders of bonds sued on, and after those suits had been consolidated, by an order made September, 1933, by leave of the court separate bills of intervention were filed in the consolidated cause by sundry individuals, the plaintiffs in each of those bills of intervention, as the same were amended, claiming to be the owner of a parcel of land alleged in the original bills to be subject to an assessment sought thereby to be enforced, and each of those bills of intervention as amended praying relief which included an adjudication that the ordinances and resolutions of the city of Tuscumbia undertaking to fix a lien against the property of the plaintiff in the bill of intervention are illegal and void, and that no lien was created or fixed against or on that property. Upon a submission of the causes upon the pleadings and evidence, the court rendered a decree dismissing the several bills of intervention. The plaintiffs in the bills of intervention appealed from that decree, and joined in assigning errors. By stipulation of the parties, the amended bills of complaint in only two of the suits brought by holders of bonds were incorporated in the record on appeal, those amended bills being similar to the omitted ones as to their import and the relief sought; and only the bill of intervention, with the amendments thereto, filed by the appellant Mrs. J. L. Wimberly, was incorporated in the record on appeal, the other amended bills of intervention being of similar import and seeking like relief, except that they respectively pertained to different improvement ordinances.

In behalf of the appellants it was claimed that the city of Tuscumbia was without power to improve its streets or other public ways by putting pavements, curbs, gutters, and sewers thereon or thereunder, or to charge the whole or part of the expense of such improvements against property abutting on such streets or public ways or the owners of such property. This claim is based upon the fact that, in pursuance of provisions of an act of Congress approved March 3, 1817 (3 Stat. 375), the United States caused territory now included in the city of Tuscumbia to be laid off as a townsite, to be platted into lots, blocks, streets,

80 F.2d 454
and other public ways, a map thereof to be made, and lots shown thereon to be sold; some of such lots having been sold prior to the admission of Alabama as a state into the Union, and some of those lots were sold after such admission. Each lot so sold was conveyed by the United States to the purchaser thereof by reference to that map. That map showed thereon each of the streets, avenues, and other public ways undertaken to be improved under improvement ordinances introduced in evidence. The sale and conveyance of such lots by the United States by reference to that map terminated the interest in and control of the United States over the streets, avenues, and public ways shown by that map. Such sale of the lots was an effectual dedication for public uses of the streets and ways shown on the map, and the purchasers of the lots acquired a special interest in the streets and public grounds on which their lots abutted. United States v. Illinois Central R. Co., 154...

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4 practice notes
  • In re Setzler, No. 42242-WM.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 20 Junio 1947
    ...Judge McCormick held that although an arrangement could not bind a debtor's future earnings (citing McKeever v. Local Finance Co., supra, 80 F.2d at 452), "under the broad equitable jurisdiction of the referee in bankruptcy the debtor's release from proceedings under Section 74 of the ......
  • Seafirst Corp. v. Arizona Dept. of Revenue, No. TX
    • United States
    • Tax Court of Arizona
    • 22 Mayo 1992
    ...of notice of the tax. Read v. Arizona Dep't of Revenue, 166 Ariz. 533, 803 P.2d 944 (Tax 1991); Wimberly v. Cowan Investment Corp., 80 F.2d 452 (5th Cir.1935); Westinghouse Elec. Corp. v. Los Angeles County, 42 Cal App.3d 32, 116 Cal.Rptr. 742 (1974). In the instant case, knowledge of the p......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Enero 1939
    ...of error, none being good as to her, none are available to him. Appellee cites and relies on Wimberly v. Cowan Investment Corp. 5 Cir., 80 F.2d 452, as authority for this proposition. However, we are unwilling to rest our decision of the case on this in view of the fact that this court has ......
  • Walton v. City of Houston, No. 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 17 Noviembre 1966
    ...due process and personal notice is not essential. Wimberly v. Cowan Investment Corporation, U.S. Court of Appeals, 5th Circuit, 80 F.2d 452, 455; cert. denied 298 U.S. 654, 56 S.Ct. 674, 80 L.Ed. As stated above, Mrs. Walton and her counsel were present at the hearing fixing the lien. We ha......
4 cases
  • In re Setzler, No. 42242-WM.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 20 Junio 1947
    ...Judge McCormick held that although an arrangement could not bind a debtor's future earnings (citing McKeever v. Local Finance Co., supra, 80 F.2d at 452), "under the broad equitable jurisdiction of the referee in bankruptcy the debtor's release from proceedings under Section 74 of the ......
  • Seafirst Corp. v. Arizona Dept. of Revenue, No. TX
    • United States
    • Tax Court of Arizona
    • 22 Mayo 1992
    ...of notice of the tax. Read v. Arizona Dep't of Revenue, 166 Ariz. 533, 803 P.2d 944 (Tax 1991); Wimberly v. Cowan Investment Corp., 80 F.2d 452 (5th Cir.1935); Westinghouse Elec. Corp. v. Los Angeles County, 42 Cal App.3d 32, 116 Cal.Rptr. 742 (1974). In the instant case, knowledge of the p......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Enero 1939
    ...of error, none being good as to her, none are available to him. Appellee cites and relies on Wimberly v. Cowan Investment Corp. 5 Cir., 80 F.2d 452, as authority for this proposition. However, we are unwilling to rest our decision of the case on this in view of the fact that this court has ......
  • Walton v. City of Houston, No. 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 17 Noviembre 1966
    ...due process and personal notice is not essential. Wimberly v. Cowan Investment Corporation, U.S. Court of Appeals, 5th Circuit, 80 F.2d 452, 455; cert. denied 298 U.S. 654, 56 S.Ct. 674, 80 L.Ed. As stated above, Mrs. Walton and her counsel were present at the hearing fixing the lien. We ha......

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