Albers v. City of Omaha

Norval, J. The board of public works of the city of Omaha, in pursuance of an ordinance passed by the mayor and council, caused the lots of Henry Albers to be filled with earth for the purpose of abating a nuisance occasioned by the existence of stagnant water bn the property. A special tax was levied against the lots by the city authorities to defray the cost of the work, and this action was instituted in the court below to enjoin the enforcement of said tax. A trial on the merits resulted in a decree in favor of plaintiff, and the city has brought the record here for review. The cause is docketed in this court as an appeal. While the city attorney has filed a paper assigning certain errors in the record and proceedings, he has treated the case in the brief filed as being here on appeal. The decree was rendered in the district court on May 13,1895, and the transcript was not filed -with the clerk of this court until March 5, 1896. The cause was not docketed in the time prescribed by statute for prosecuting appeals to this court, as more than six months had elapsed between the entering of the decree and the lodging of the [358] transcript in this court. (Withmell v. City of Omaha, 37 Neb. 621.) The practical result to the city would be no more favorable if the cause should be treated as being here on error. The assessment was assailed, and it was held invalid, because plaintiff had never been notified that his lot had been declared a nuisance, and that he was given no opportunity to abate the same himself. It has been ruled that under the charter governing the city of Omaha the owner of a lot is entitled to notice from the municipal authorities of the purpose to fill his lot, and an opportunity to make the improvement himself, and a special tax to pay for the work is invalid where such notice and opportunity have not been given. (Horbach v. City of Omaha, 54 Neb. 83; Lasbury v. McCague, 56 Neb. 220.) Whether this plaintiff received notice to fill his lot was the issue tendered by the pleadings, and whether the same was established or not was solely a question of fact to be determined from a consideration of the evidence adduced on the trial. The city filed no motion for a new trial; hence it is not entitled to have the evidence reviewed to ascertain whether it sustains the findings and decree. (Losure v. Miller, 45 Neb. 465; Gray v. Disbrow, 36 Neb. 857; Scroggin v. National Lumber Co., 41 Neb. 195; Brown v. Ritner, 41 Neb. 52.) So that if the cause was properly here on error, the decree would necessarily be affirmed for want of a motion for a new trial. However, as the appeal was not docketed in time, it is Dismissed.