Opinion
7 Div. 702.
May 28, 1942. Rehearing Denied June 30, 1942.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Appeal to the Circuit Court by W. H. Austin from assessment for street improvements levied by the City of Anniston. From a judgment dismissing the appeal, plaintiff (property owner) appeals.
Reversed and remanded.
Ross Blackmon, of Anniston, for appellant.
The mere filing and approval of the appeal bond is the event which effects the appeal. Code 1923, §§ 610, 6131, 6132, 6143; Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241; Liverpool etc. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363; Journequin v. Land, 235 Ala. 29, 177 So. 132; Cochran v. State, 206 Ala. 74, 89 So. 278; Collins v. Hodges Lbr. Mfg. Co., 210 Ala. 6, 97 So. 424; Peters v. Schuessler Sons, 208 Ala. 627, 95 So. 26. Continuance of the cause in the court below at instance of the appellee (City) was a waiver of its right to subsequently file its motion to dismiss the appeal, and was an admission by it of its pendency in the circuit court. Noles v. Marable, 50 Ala. 366; Beck v. Glenn, 69 Ala. 121; Woolf v. McGaugh, 175 Ala. 299, 308, 57 So. 754; Hayes v. Dunn, 136 Ala. 528, 531, 34 So. 944. Joinder in issue by appellee on appellant's motion to quash the assessment was a waiver of appellee's right to file its motion to dismiss the appeal, and its motion to dismiss came too late. Parsons Lbr. Mfg. Co. v. Farrior, 225 Ala. 61, 141 So. 696; Johnston v. Fort, 30 Ala. 78, 80; Turnly v. Stinson, 1 Ala. 456; Mabry v. Dickens, 31 Ala. 243; Thompson v. Clopton, 31 Ala. 647, 649; Weeks v. Napier, 33 Ala. 568, 570; Holtzclaw v. Ware, 34 Ala. 307, 311; Myers v. Segars, 41 Ala. 383, 385; Noble v. Cullom, 44 Ala. 554, 556; Heyman v. McBurney, 66 Ala. 511, 513; Bolling v. Jones, 67 Ala. 508, 515; Robinson v. Murphy, 69 Ala. 543, 546; Clark v. Rose, 75 Ala. 129, 131; Thompson v. Lea, 28 Ala. 453. It is not permissible to split judicial proceedings; the court cannot assume jurisdiction to try a part of a cause and then hold that it is without jurisdiction to try the other part of the cause. Lee v. Tannenbaum, 62 Ala. 501, 507; Berringer v. Payne, 68 Ala. 154, 155; Moberly v. Peek, 67 Ala. 345, 348; Wharton v. King, 69 Ala. 365, 368; Liddell v. Chidester, 84 Ala. 508, 509, 4 So. 426, 5 Am.St.Rep. 387; Kansas City, M. B. R. Co. v. Robertson, 109 Ala. 296, 299, 19 So. 432. Appellee, having joined in invoking the jurisdiction of the Circuit Court on appeal to determine the validity of its assessments of appellant's property, was thereby estopped to file the motion to dismiss the appeal. Wright v. Fannin, 229 Ala. 278, 282, 156 So. 849; Todd v. Interstate Mortgage Bond Co., 196 Ala. 169, 71 So. 661; Huntsville Belt Line R. Co. v. Corpening, 97 Ala. 681, 12 So. 295. Appellee by failing to move promptly to dismiss the appeal, if the appeal did bring up two judgments, deprived appellant of the privilege of amending his appeal by dismissal as to one of the lots. Parsons Lbr. Mfg. Co. v. Farrior, supra; Hunter v. Watters, 226 Ala. 175, 145 So. 472; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Hayes v. Dunn, 136 Ala. 528, 531, 34 So. 944. The fact that property is described by several lot numbers is not conclusive that the tract is not one parcel or lot for the purpose of assessment for municipal improvements. Montgomery v. City of Florence, 226 Ala. 340, 146 So. 882. The provision of law that all lots are to be separately assessed is for the benefit of the property owner, and he may waive it. Peoples v. State Sec. Bank, 218 Ala. 534, 119 So. 226.
Merrill Merrill, of Anniston, for appellee.
Two final judgments or decrees cannot be made the subject of one appeal. Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509; Mobile Imp. Bldg. Co. v. Stein, 158 Ala. 113, 48 So. 368, 17 Ann.Cas. 288; U.S. Fidelity Guaranty Co. v. Benson Hdw. Co., 222 Ala. 429, 132 So. 622; Fulton v. State, 170 Ala. 69, 54 So. 165; Peoples v. State Sec. Bank, 218 Ala. 534, 119 So. 226. This applies to assessments by a municipality against property for local improvements. Decatur Land Co. v. City of New Decatur, supra. Where two or more lots are assessed for public improvements by a municipality the owner cannot question the whole assessment in a single appeal. Decatur Land Co. v. City of New Decatur, supra; Mobile Imp. Bldg. Co. v. Stein, supra. The statutes giving a municipality the right and authority to assess property for local improvements contemplates that each lot or parcel of land should be assessed separately. Code 1940, Tit. 37, § 529; Selma v. Hobbs, 207 Ala. 420, 92 So. 900; U.S. Fidelity Guaranty Co. v. Benson Hdw. Co., supra; Hamrick v. Albertville, 219 Ala. 465, 122 So. 448; Goodman v. Birmingham, 223 Ala. 199, 135 So. 336; Const. 1901, § 223. Municipality is not required to make preliminary estimate as to cost for each separate street or lot or parol of land when the proposed improvement is the same type along each street. City of Hartselle v. Culver, 216 Ala. 668, 114 So. 58.
The appeal challenges the action of the circuit court in the matter of street improvement assessment. The statutes having application are found in Code 1940, Tit. 37, § 513, et seq.
The record shows a due protest by the owner of two contiguous lots that was disallowed by the duly constituted city authorities; that he took an appeal to the circuit court and gave the required bond which was approved and filed in the circuit court.
An established proposition by the decisions of this court is that the mere filing of a proper appeal bond effectuates the appeal, though the notice is not given within the period allowed by law for taking an appeal. Maya Corporation v. Smith, 239 Ala. 470, 473, 474, 196 So. 125; Code 1923, and Michie's Code of 1928, §§ 6101, 6131, 6132 and 6143, Code 1940, Tit. 7, §§ 765, 766, 792, 793, 804.
The City of Anniston duly adopted an improvement ordinance providing for the pavement of designated streets within its corporate limits. The appellant was the owner of two contiguous lots abutting on streets to be paved. When the paving was done as provided by the ordinance, the city gave appellant notice through the city clerk, showing one sum to be due under "ordinance No. 330, total assessment $592.19, lots 23 and 24, Block No. 512."
Appellant filed written protest of the paving assessment "as a unit." The effect of written protest was that the property had not increased in value by reason of any special benefits resulting from the pavement; that the alleged improvements made have served to decrease the market value of said property to an extent in excess of the amount sought to be assessed against and to be paid for said improvement; and that said improvements as were made and now exist serve to impair and impede the egress and ingress to and from said property.
This protest being disallowed by the duly constituted authorities of the city, the property owner took his appeal to the circuit court. Pertinent parts of the bond are as follows:
"The condition of the above obligation is such that whereas the city of Anniston, on to-wit the 15th day of October, 1940, assessed the following described property of the said W. H. Austin, to-wit:
"Lots 23 and 24, in Block 512 as shown on the map of the City of Anniston for Street Improvements abutting said property, under Street Paving Ordinance Nos. 327, 328, 329, 330, 331, 334 and 335, as per notice given to property owners to protest said assessments as published in the Anniston Star of Anniston, Alabama, on October 4th, 1940, on Page 11, of said publication, said assessment being in the sum of $592.16, and
"Whereas said W. H. Austin duly protested in writing the said assessment and his said protest and objections were overruled by the governing body of the city of Anniston and said assessment was made final; and
"Whereas the said W. H. Austin, feeling aggrieved at the action of the City of Anniston through its Commissioners, has appealed the said assessment to the Circuit Court of Calhoun County, Alabama, in which Court he demands a jury trial of the issues involved in said protest. * * *."
The cause should have been tried as provided by the law in the circuit court on the property owner's demand for a jury trial of the issues involved in said protest.
The records from the circuit court show that motion of the City of Anniston for a continuance was granted and the property owner excepted; that thereafter motion to quash assessment was overruled and plaintiff excepted to the ruling of the court; that on December 5, 1941, motion to dismiss the appeal as to Lot No. 23 was overruled, and plaintiff excepted to the ruling, and on the same day the appeal was dismissed on the motion of the city as affecting the two lots and the aggregate assessments of $592.16 against the appellant.
The appellant's statement of facts, borne out by the record, is:
"After the appeal was taken from the judgment of assessment of appellant's property by the City Commission of Anniston, to the Circuit Court of Calhoun County, by the appellant here, the appellee appeared in the Circuit Court and invoked its jurisdiction to grant it a continuance of the cause, which was duly granted and the appellant reserved an exception to the court's ruling, * * *. Thereupon, the appellant filed a motion to 'Quash' the City's assessment of his property, * * *. The appellee joined issue on the motion to 'quash' and consented that it be set specially for hearing on a given date. Whenthe motion to 'quash' came on to be beard on the 29th day of Nov. 1941, the appellee's counsel appeared in Court and submitted an oral argument against the motion, * * *. More than five (5) months after the appeal to the Circuit Court, appellee assumed an entirely different attitude in the premises and filed a motion in the Circuit Court to dismiss the appeal in this cause there pending. * * *
"Notwithstanding, the Circuit Court had been exercising jurisdiction in the cause for a period of five months, appellee's motion to dismiss the appeal was granted and the appeal dismissed out of the Circuit Court.
"This case is brought to this court by appeal to revise the court's ruling on said motion and appellant's motion to 'quash' the assessment for its alleged invalidity."
It has long been the established rule in this jurisdiction that a plea in abatement must be filed at the first term at which the case stands for trial, "and comes too late after a general continuance; and when thus waived, by the failure to file it in proper time", the right to plead it is not revived on appeal to another court. Noles v. Marable, 50 Ala. 366.
To the same effect are: Wolff v. McGaugh, 175 Ala. 299, 57 So. 754; Ex parte Kelly, 221 Ala. 339, 128 So. 443; Smith v. State, 227 Ala. 160, 148 So. 860; Hayes v. Dunn, 136 Ala. 528, 34 So. 944.
In Parsons Lumber Mfg. Co. v. Farrior, 225 Ala. 61, 141 So. 696, it was held as to street improvement assessments on contiguous property, that: "* * * the judgments are separate, each final and supporting an appeal, and that both cannot be brought up for review by one appeal. In support of this contention appellees cite the case of Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509. This case dealt with a single appeal taken to the circuit court by a landowner from separate improvement assessments made by the city council of the city of New Decatur against each lot, as the statute required. The circuit court, on motion of the city, dismissed the appeal. The judgment of the circuit court was here affirmed, and this court, in that case, observed: 'The doctrine upon which this ruling was rested is fully set forth in Mobile Imp. [ Bldg.], Co. v. Stein, 158 Ala. 113, 115, 116, 48 So. 368, 17 Ann.Cas. 288, and was later followed and approved in Fulton v. State, 170 Ala. 69, 54 So. 165. It is that two or more distinct judgments or decrees, each of which will support an appeal, cannot be united in one appeal. While this rule was announced and applied to a review sought by appeal to the Supreme Court, it is equally applicable to appeals authorized from separate assessments of distinct lots by municipal bodies in the exercise of their powers with respect to public improvements within their jurisdiction.' "
See Wright v. Fannin, 229 Ala. 278, 282, 156 So. 849, where many authorities are collected.
Under the facts that the lots were contiguous and the street improvement notice issued to the property owner was as to both lots, the circuit court had jurisdiction of the appeal to try the facts under the protest of the taxpayer and his demand for a jury trial of the issues so presented.
The city was bound by the estoppel which affects it as we have indicated.
The action of the trial court in dismissing the cause was in error and that judgment is reversed and the cause is remanded.
Reversed and remanded.
GARDNER, C. J., and BROWN, FOSTER, and LIVINGSTON, JJ., concur.