City of High Point v. Brown

ClabKSON, J. The appealing defendant, R. G. Hendrix, at the close of plaintiffs evidence and at the close of all the evidence made motions in the High Point Municipal Court, for judgment as in case of nonsuit. C. S., 567. The High Point Municipal Court overruled these motions and the court below sustained these rulings and in this we can see no error. A finding of fact is as follows: “That the defendants, C. E. Diffendale and wife, Lida D. Diffendale, were the owners of the land hereinafter described at the time of the making of the said local improvement on Montlieu Avenue; that subsequent to the completion of the said improvement and on, 3 October, 1928, the defendants, R. G. Hendrix and wife, Mattie Hendrix, purchased the said land from the defendants, O. E. Diffendale and wife, Lida D. Diffendale; that the defendant, Mattie Hendrix, has died since the institution of this action and the defendant, R. G. Hendrix, is the sole owner of the said property; that the said property herein referred to is in the city limits of the city of High Point abutting 150 feet on the west side of Montlieu Avenue between Circle Drive and the city limits of said city, which may be described with more particularity as follows: Lot 50 of the plat of College Terrace, recorded in plat Book 6, page 131, register of deeds office, Guilford County, North Carolina.” In Statesville v. Jenkins, 199 N. C., 159 (163), is the following: “An assessment made upon adjoining land for a street improvement by a *667 town is a charge upon tbe land constituting a lien superior to all others, 0. S., 2713, and not enforceable against the personalty or other lands of the owner, and when the owner of land has been thus assessed, payable in installments, 0. S., 2716, and he subsequently dies, it is not a debt of the deceased payable by his personal representative, but a charge against the land itself. The provisions of C. S., 93, as to the order of payment of debts of the deceased has no application. Carawan v. Barnett, 197 N. C., p. 511. The rights of the plaintiff are governed by the statute which makes the assessment.” The record discloses that the street assessment was against the property of C. E. Diffedel (Diffendale) : “Montlieu Avenue — G. E. Diffedel; paving frontage, 150; cost per foot, $2.49; paving assessment, $373.50; curb assessment, $135.00; driveway assessment, .; total, $508.50; engineering interest and incidentals, $25.43; total assessment, $533.93.” The record also discloses that notice was given: “You are hereby notified that the paving assessments have been computed for the loca] improvement on Montlieu Avenue and the assessment roll has, by order of the city council, been deposited in the office of the city manager in the city hall for inspection of abutting property owners and interested parties until Tuesday, 5 July, 1927, at 8 :00 p.m., when the city council will meet at the municipal building for the purpose of hearing allegations concerning same.” Diffendale took no appeal from this assessment. He had notice, it became a statutory lien upon the property for the street assessment, a judgment in rem. High Point v. Clinard, 204 N. C., 149 (151). If dissatisfied with the street assessment, Diffendale should have appealed. Vester v. Nashville, 190 N. C., 265; Wake Forest v. Holding, ante, 425. The presumption is in favor of the regularity of proceedings under which public improvements authorized by the General Assembly have been made. Gallimore v. Thomasville, 191 N. C., 648. The appealing defendant, R. G. Hendrix, when he purchased the property, there was a statutory lien on it, for the street assessment, and he took it cum onere. The assessment was not void as in Charlotte v. Brown, 165 N. C., 435, and like cases. This appealing defendant has no legal status to attack this assessment, it is res judicata. The defendant tendered to the court a witness, S. O. Schaub, who owned property in the same assessment district, for the purpose of attacking the petition and the assessment roll. This evidence was excluded and properly so. If there was any irregularity it was for the owner, Diffendale, to object - and appeal, but in not doing so, the street assessment was binding on him and the appealing defendant, the subsequent purchaser of the lot. Another contention presented by the appealing defendant is to the effect that this action cannot be prosecuted in the High Point Municipal Court. This contention cannot be sustained. *668 Chapter 150, Public-Local Laws, 1933, entitled “An act to amend chapter 131, Public-Local Laws, 1931, relating to special assessments levied by the city of High Point,” validated and confirmed the bringing of this action in the High Point Municipal Court and repealed that portion of chapter 131, Public-Local Laws of 1931, providing that it should be the duty of the city council to cause actions to be'instituted in the Superior Court. Thus eliminating any question of the right of the plaintiff to try this action in the High Point Municipal Court. Also by chapter 132, Public-Local Laws, 1933, entitled, “An act to amend chapter 569, Public-Local Laws of 1931, as amended relating to the municipal court of the city of High Point,” likewise validates the bringing of this action in the High Point Municipal Court. Plaintiff contends that the Legislature of 1933 had a right to validate the bringing of this action in the High Point Municipal Court, citing Sumner v. Miller, 64 N. C., 688; Bost v. Cabarrus County, 152 N. C., 531; Waddill v. Masten, 172 N. C., 582; Gallimore v. Thomasville, 191 N. C., 648. "We think the contention correct. In Martin v. Vanlaningham, 189 N. C., 656 (658), the principle is laid down as follows: “ ‘No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights, where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending, and future actions.’ 2 Lewis’ Edition Southerland Statutory Construction, p. 1226.” Bateman v. Sterrett, 201 N. C., 59 (61). For the reasons given, the judgment of the court below is Affirmed.