Wynn v. First Nat. Bank

• Decision Date: 20 December 1934
• Docket Number: 4 Div. 790.
• Citation: 159 So. 58,229 Ala. 639
• Parties: WYNN v. FIRST NAT. BANK OF DOTHAN.
• Court: Alabama Supreme Court

159 So. 58

229 Ala. 639

WYNN v. FIRST NAT. BANK OF DOTHAN.

4 Div. 790.

Supreme Court of Alabama

December 20, 1934

Rehearing Denied Jan. 31, 1935.

Appeal from Circuit Court, Geneva County; Emmet S. Thigpen, Judge.

Bill to enforce a lien by the First National Bank of Dothan against Joe Wynn, and cross-bill by respondent. From a decree sustaining a demurrer to the cross-bill, respondent appeals.

Affirmed.

O. S Lewis, of Dothan, for appellant.

Farmer Merrill & Farmer, of Dothan, for appellee.

BOULDIN Justice.

The First National Bank of Dothan filed a bill against Joe Wynn, appellant, to enforce a local assessment, alleged to have been adjudged by regular proceedings of the town of Hartford against abutting property for street improvements.

Complainant claims as assignee of such assessment and the statutory lien for its enforcement.

Respondent filed a cross-bill to cancel and vacate such assessment for fraud and illegality.

The appeal is from a decree sustaining demurrers to the cross-bill.

The cross-bill does not deny the averments of the original bill that the town council passed improvement ordinances, let a contract for the improvements, under which they were duly made and accepted, and thereupon assessment proceedings, with the notices required by law, were made and entered; all such proceedings being regular and according to the forms of law.

The gravamen of the cross-bill is that the improvement was made as a state highway project, under a contract let by the State Highway Department to the municipality; that, when completed and accepted, the municipality, and its contractor, were fully paid therefor from state highway funds; that nevertheless, the municipal authorities, after receiving full payment, proceeded to impose local assessments upon abutting property. The cross-bill, upon these averments, charges that the jurisdiction to make such assessment was acquired by the concoction of a fraudulent and simulated right to make such assessment; that the result is a judicial fraud.

It appears from the original bill and exhibits that the original and final improvement ordinances were passed in May, 1927; that in June, 1927, a contract was duly let for improvements on several streets of the town of Hartford at a total contract price of $34,425.80.

The cross-bill discloses that pending this situation, and on August 15, 1927, the municipality made a contract with the State Highway Department to construct the improvement on Main street abutting the property here involved as a state highway project at and for the sum of $7,200; and on completion the full amount due for this portion of the improvement was ascertained and paid by the Highway Department.

Whether, in letting a contract by the Highway Department to a municipality (Highway Code 1927, § 27, Code 1928, § 1397 (29) for an improvement upon a public street of the town, and at the same time a part of the state highway system, the town may, as matter of law, with or without stipulations in the contract with the Highway Department, proceed under its municipal powers for the making of such improvement and local assessment, is not presented in briefs, and therefore is not here determined. Whether the state aid in such case should inure to the municipality for the benefit of all its citizens, or go to relieve abutting property from liability for the special benefits accruing to such property from such improvements, is a question of policy worthy of the consideration of the lawmakers.

In the instant case the record discloses all the necessary jurisdictional facts, legislative acts in passage of improvement ordinances, executive and administrative action in letting contract and supervising the improvement, followed by judicial action in making local assessments, recited to be not in excess of the special benefits to abutting property by reason of such improvements, and not in excess of the cost of such improvements.

The cross-bill is, therefore, an attack on the integrity of a judicial record for matters dehors the record.

Fraud in the concoction of such judgment, charged against the judicial authority itself, is rightly treated in briefs as the basis of the cross-bill.

Clearly the objection now urged against the validity of the assessment was open to appellant while the proceedings were in progress, with all the legal remedies, by appeal, or otherwise. There is no averment that he did not have the notices provided by law, nor indeed that he did not have actual knowledge of all the facts now asserted in his cross-bill. It appears he has in fact paid part of the assessment.

In the recent cases of Florence Gin Co. v. City of Florence et al., 226 Ala. 478, 147 So. 417, and City of Jasper et al. v. Sanders, 226 Ala. 85, 145 So. 827, this court fully considered bills in equity attacking assessment proceedings of this character. These cases, and authorities there cited, are clear to the point that a bill in equity does not lie for matters which could, with due diligence, have been presented and adjudicated in the original proceedings.

The bill must clearly aver a want of knowledge or other good reason why he did not avail himself of the remedies provided by law. Demurrers directed to this defect were properly sustained.

Moreover, in the recent case of Hatton v. Moseley, 156 So. 546, this court has reviewed the cases, and re-announced the long-recognized rule that bills in equity to cancel judgments or judicial proceedings at law for fraud are bills in the nature of bills of review and by analogy are barred by the limitation of three years, with proviso giving one year after discovery of the fraud.

These assessments were perfected of record in November, 1927; the cross-bill filed in November, 1933, a delay of six years. No excuse is given for this delay, and the suit is barred under authority of Hatton v. Moseley, supra.

This question was sufficiently raised by assignment of demurrer numbered (v).

Affirmed.

ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur.

On Rehearing.

BOULDIN Justice.

The opinion is sharply assailed in brief on rehearing as giving sanction to a simulated and...