City of Louisville v. Clark

JUDGE BURNAM delivered the opinion of the court. This action was instituted by appellees to enforce liens on the lots of appellees Dinwiddie, Thomas, Magüiar, and Hillerich abutting on Chestnut Street, in Louisville, to satisfy certain apportionment warrants issued “for the origi [393] nal construction of Chestnut street, from the west line of 26th to the center line of 27th street, by grading, curbing, and paving it with vitrified brick or block pavement, with corner stones at the intersection of streets and alleys, and footway crossings across all intersecting streets and alleys, in accordance with a general ordinance concerning the, improvement of Chestnut street approved April 25, 1892.” The defendants (appellees here) resisted the claim on several grounds: First, they allege in their answer that the necessary preliminary steps to authorize the letting of work and the enforcement of the liens for the payment therefor against abutting lots were not taken as required by the charter and ordinance; second, in the fourth paragraph of their answer they allege that the ordinance and contract under which the work was done are void, because they provide that the contractor should keep the street so constructed in repair for five years after its completion at the expense of the lot owners. Appellees (as plaintiffs in the action) demurred to the fourth paragraph of the answer, which the chancellor overruled, holding that the ordinance and contract under which the work was performed were void, and adjudged that the demurrer be carried back to the petition, which was based on the ordinance and contract, and therefore set out no cause of action against the defendants, and allowed plaintiffs to amend. Appellees thereupon filed an amended petition, bringing appellant, the city of Louisville, before the court, and seeking to make it responsible for the amount due, on the ground that it had contracted for the work, and had received it, and issued therefor apportionment warrants against the abutting lots, which warrants the chancellor had held invalid. [394] No denial was made by appellant of the averments of the amended petition, and the court thereupon rendered a judgment dismissing the petition, so far as the defendant abutting property holders were concerned, and gave judgment against the city of Louisville for the full amount called for in the apportionment warrants sued on; and this appeal is prosecuted to reverse that judgment. The identical question involved in this case was decided by this court in the case of Fehler v. Gosnell, 99 Ky., 380, [35 S. W., 1125]. It was held in that case that a similar ordinance was not void, but that, if the price of the five years’ repairs entered into the bid of the contractor, on proof of such fact the cost of the work, as against the lot owners, should be abated, and credit allowed for the amount of ’the contract price intended to cover such repairs; that the abutting owners were bound to pay the actual cost of the improvement, less the cost of the five years’ repairs, which might be recovered from the city. Section 2834, Kentucky Statutes, provides “that no error in the proceedings of the general council shall exempt from payment after the work has been done as required either by the ordinance or contract, but the general council or the court in which the suit may be pending shall make all corrections, rules and orders to do justice to all parties concerned; and in no event, if such improvement be made as provided for either by ordinance or contract, shall the city be liable for such improvements without the right to enforce it against the property receiving the benefit thereof.” It seems to us that there can be no doubt that the chancellor in this proceeding can make the necessary corrections in the apportionment warrants, and • render judgment againts the lot owners for the actual cost of construction. [395] The judgment appealed from in this case was rendered on the 5th day of March, 1890, and the appeal by the city of Louisville was filed on the 1st day of September, thereafter, and in the statement filed with the transcript by appellant only R. L. Clark and the Jackson Loan & Investment Company were named as appellees. On the 10th day of November, 1896, these appellees moved for and were granted a cross appeal against the appellant, and the abutting property owners sued in the original petition. At the time of the granting of this appeal, there was no statement filed by them, as required by section 739 of the Code of Practice, but counsel of the abutting property owners entered their appearance in writing to this appeal. It is now insisted by these appellees that the alleged cross appeal granted by this court to plaintiffs in the court below is a nullity, because a cross appeal is allowed only to an appellee against the appellant, and not against a coappellee, — citing a number of adjudications of this court. In this case the abutting property owners were not made parties to the original appeal prosecuted by the city, and therefore were not appellees in that proceeding. The appeal granted by this court to the contractors is an original appeal from the judgment of the lower court dismissing their petition against the abutting property owners in the judgment of March 5, 1896. It is true that these appellants did not file in the office of the clerk of this court a copy of the judgment from which they appealed, or comply with the provisions of section 739 of the Code, in so far as that section requires a statement; yet it does appea'r that the identical judgment appealed from had been filed upon the original appeal, and that appellees, the abutting property owners, voluntarily entered their written appearance to this appeal of the con [396] tractors, and made no objection thereto until after the ease had been regularly submitted, and after the expiration of the two years in which such appeal could be taken. This objection can not be raised by brief on a final submission of the case upon its merits. By the entry of their appearance, and failure to make motion to dismiss the appeal before submission, they have waived any right they might have had to object to any irregularity in the granting of the appeal. For the reasons indicated, so much of the judgment as dismisses the petition of plaintiffs against the abutting property holders, and gives judgment for the whole amount sued for against the city of Louisville, is reversed, and the cause is remanded for further proceedings consistent with this opinion.