City of Huntsville v. Goodenrath , 13 Ala. App. 579 ( 1915 )

THOMAS, J.

After the record was filed here and before the submission of the case, a writ of certiorari was .issued by order of this court, at the instance of appellee, directing the clerk of the lower court to certify and forward to this court, as a part of the record and proceedings in this case, a judgment of the lower court amending and correcting nunc pro tunc the judgment appealed from, so as to make the latter truthfully speak the judgment of the lower court. The particulars of the amendment and correction had reference solely to the matter as to what were the pleas upon which issue was joined and as to what were the pleas to which a demurrer was sustained.

(1) It appears from the record that the appellant filed in answer to the action 13 pleas — one numbered A, and the others numbered, respectively, from 1 to 12 consecutively. It further appears conclusively from the face of the only demurrer filed to defendant’s pleas that it was filed only to pleas A and 1, 2, 3, 4, 6, 7, 9, 10, 11, and 12 and was not filed to pleas 5 and 8 — the former (5) setting up the statute of nonclaim (Code, § 1191), and the latter (8) the general issue. The original judgment, however, incorrectly recites in this particular that: “Plaintiff demurs to pleas numbered 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 12, and A, which said demurrer being submitted to and duly considered by the court, it is ordered and adjudged that said demurrer be and the same is hereby sustained, whereupon issue being joined on pleas 5 and 9, thereupon came a jury,” etc.

The judgment, as amended nunc pro tunc, recites in correction of the former that: “Plaintiff demurs to pleas 1, 2, 3,' 4, 6, 7, 9, 10, 11, and 12, and A, which said demurrer "being submitted to and considered by the court, it is ordered and adjudged that said demurrer be and the same is hereby sustained, whereupon issue being joined on pleas 5 and 8, thereupon came a jury,” etc.-

It is contended by appellant, who objected and excepted to this action of the court in so correcting or amending at a subsequent term the former judgment entry, that there was no record evidence justifying or authorizing such amendment and correction. But we think it a sufficient answer to this contention to say that the pleadings themselves, which are certainly a part of the record, show conclusively the error in the recitals of the original judgment entry and the correctness of the recitals of the amended judgment entry. The court could not, as recited in the former, have sustained a demurrer to plea numbered 8 (the general issue), as the pleadings show that no demurrer was filed to such plea ; nor could issue have been joined on plea 9, as recited, for a demurrer had been filed to this plea and had been sustained, as previously so recited in the said entry itself. The issue was therefore joined on plea 8 (the general issue), as recited in the amended entry, and.not on plea 9 as recited in the original entry, and on plea 5 as recited in both entries. The record evidence ivas ample, we think, to justify the correction made, and we shall consequently treat the amended judgment as the real judgment of the court, Avhich relieves the necessity for any consideration of the question presented under the judgment in its original form as to Avhether it was reversible error for the court to sustain a demurrer to a plea of the general issue.—Montevallo Coal Co. v. Reynolds, 44 Ala. 252; Seymour v. Harrow Co., 81 Ala. 250, 1 South. 45; Cunningham v. Fontaine, 25 Ala. 644; Jones v. Woodstock Iron Co., 95 Ala. 555, 10 South. 635; Tobias v. Triest, 103 Ala. 644, 15 South. 914; Mill Co. v. Smith, 78 Ala. 108; Central of Ga. Ry. Co. v. Carleton, 163 Ala. 62, 51 South. 27; Merrill v. Sheffield, 169 Ala. 242, 53 South. 219; L. & N. R. R. Co. v. McCool, 167 Ala. 644, 52 South. 656.

We come, then, to á consideration of the main case, which is an appeal on the record proper, Avithout a bill of exceptions, and requires a revieAV only of the action of the court in overruling appellant’s demurrers to the complaint and in sustaining appellee’s demurrers to appellant’s said pleas filed to the complaint.

The complaint, comprising two counts, will be set out in the report of the case. No ground of the demurrer to it-seems to be insisted upon except ground 5; and, Avhile Ave are of opinion that none of the grounds contain merit, we shall, for the reason stated, confine our discussion to said ground 5, Avhich raises the point as to whether or not, Avhen the demand against a municipality is of the character here sued on, it is necessary for the complaint to allege the filing of a statement of such demand with the city authorities before bringing the suit.

(2) Section 1275 of the Code is by its express terms confined in its operation to claims or demands against a city for personal injuries received; and, while it has been held that a compliance with its requirements as to filing a sworn statement of the claim or demand Avith the city authorities is a prerequisite to the right of bringing a suit thereon and must be averred (Brannon v. Birmingham, 177 Ala. 419, 59 South. 63; New Decatur v. Chappell, 2 Ala. App. 564, 56 South. 764,) yet such section has no application to the case at bar for the reason that this action is not founded upon a claim or demand for personal injuries, but for injury to property. Such a claim or demand as the latter falls within the provisions of section 118Í of the Code, Avhich likeAvise requires a filing of a statement of it with the city authorities; but in construing the section it has beeir held both by this court and the Supreme Court that the section is similar to the statute of nonclaim applicable to administrators, and that a failure to file the claim is defensive matter property available only by plea.—Anderson v. Birmingham, 177 Ala. 303, 58 South. 256; Birmingham v. Darden, 1 Ala. App. 479, 55 South. 1014. Hence it was not necessary for the complaint in this case to allege a filing of a statement of the demand sued on Avith the city authorities before bringing suit.

(3) To all the numerous pleas filed by appellant (defendant beloAv) demurrers were sustained, except as to pleas 5 and 8, as before stated, to which no demurrer was filed; but none of the several assignments of error predicated upon the action of the court in sustaining such demurrers seems to be insisted upon by appellant’s counsel in brief, except as to plea A, and they are consequently Avaived. Besides, Ave may add, they are, in our opinion, without merit.—Fitts v. Phoenix Auction Co., 153 Ala. 635, 45 South. 150; Harper v. Raisin Fert. Co., 148 Ala. 360, 42 South. 550; Hodge v. Rambo, 155 Ala. 175, 45 South. 678; Western Ry. Co. v. Russell, 144 Ala. 142, 39 South. 311, 113 Am. St. Rep. 24; Williams v. Spragins, 102 Ala. 424, 15 South. 247.

(4) Plea A sets up, in alleged former adjudication,of the issue here involved, the proceedings of the hoard of commissioners of defendant city, had (before this suit was brought) under the authority of the provisions of the Municipal Code (Code, § 1359 et seq.), and from which it appears that such board, after determining upon the improvement of the street (the raising of the grade of which, in executing the improvements, caused the injury to plaintiff’s property here complained of), assessed against plaintiff’s said property, which abutted thereon, the sum. of $37.80 as the proportion of the cost of the improvements- that it was adjudged by the board, after giving the notice required by the statute (Code, § 1377), said property was to bear. The issue before such board, as fixed by the law, was' whether the value of such property had been increased or not as .the result of the street improvements, considering, in so determining, special, but not general, benefits. If not increased, which was a matter for the board to determine, then the jurisdiction of said board ceased, for in such event no assessment whatever could have lawfully been made by said board against the property. -Only in case .the board found that, as the result of special benefits derived from the improvements, the value of the property had been increased, could they levy any assessment at all upon it, and then not in excess of such increased value; for, says the Constitution, § 223: “No city, town,' or other municipality shall make any assessment for the cost of sidewalks or street paving, * * * in excess of the increased value of such property by reason of * * * special benefits derived from such improvements.”

. To the same effect is section 1373 of the Code.—Constitution, § 223; Code, § 1373; Duke v. Anniston, 5 Ala. App. 348, 60 South. 447; Decatur v. Brock, 170 Ala. 149, 54 South. 209; Harton v. Avondale, 147 Ala. 458, 41 South. 934; Birmingham v. Wagenseler, 168 Ala. 344, 53 South. 289.

When, therefore, said board of commissioners of defendant city, after complying with the provisions of the statute (Code, § 1359 et seq.) with respect to street improvements and assessments therefor, assessed the sum of $37.80 against the property here alleged to have been injured as a result of the improvements, it necessarily determined that on the whole — not considering, of course, general benefits — the value of said property had as a result of the work not been decreased, but increased, at least to the extent of $37.80. And in reaching such conclusion, necessarily they would be required to weigh, and it- must be presumed did weigh and take into the calculation also all special injury or detriment the property had suffered as a result of the work, and deduct the amount of such special injury or detriment from the value of the special benefits such property had sustained; for without this they could not rightfully have said that upon the whole its value had been increased because of special benefits derived from the improvement. If the amount of the injury done the property exceeded the value of the special benefits it sustained, certainly it cannot be said that the value of the property was increased as a result- of the improvements.

As said by our Supreme Court in Birmingham v. Wagenseler, 168 Ala. 349, 53 South. 289: “Under the rules of law governing such matters, the same work could not he both a benefit and a detriment to the property [in a case where general benefits are not to be considered]. To determine whether there was a benefit or a detriment to the property, the test is whether the 'work done increased or diminished the value of the property [not considering general benefits]. If it increased the value of the property, then the assessment, not exceeding the benefit on the one hand or its proportionate share of the expense on the other, would be proper and legal. On the other hand, if said work diminished the value of said property by making it more inaccessible, then the owner of the propérty would be entitled to damages.”—Birmingham v. Wagenseler, supra.

The complaint here, as will be observed from reading it in the report of the case, is for damages, alleging a special injury to the property, in that the work rendered the property more inaccessible, in that the grade of the sidewalk was thereby raised 11 inches above the level of the ground floor of plaintiff’s store located on the property; and is predicated upon section 235 of the Constitution of 1901, which, to the extent below quoted, is the same as section 7, art. 14, of the Constitution of 1875, and provides, among other things: “Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as * * * provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction,” etc.

In construing and applying this provision of the Constitution, our Supreme Court have held that the raising or lowering of the grade of a street by a city, resulting in making more inaccessible private property abutting thereon, furnishes a right of action therefor to the owner of such property, unless, of course, the damages have previously been ascertained and paid under condemnation proceedings instituted by the city.—City Council of Montgomery v. Maddox, 89 Ala. 181, 7 South. 433; Avondale v. McFarland, 101 Ala. 381, 13 South. 504; Arndt v. Cullman, 132 Ala. 551, 31 South. 478, 90 Am. St. Rep. 922; McEachin v. Tuscaloosa, 164 Ala. 263, 51 South. 153; New Decatur v. Scharfenberg, 147 Ala. 367, 41 South. 1025, 119 Am. St. Rep. 81; New Decatur v. Smith, 148 Ala. 682, 41 South. 1028.

(5-7) When condemnation proceedings have not been resorted to by'the city and suit is consequently brought by the property owner, as here, the measure of his damages is, of course, the same as it would have been in the condemnation proceedings had they been resorted to, and is, as to property wholly “taken” or “destroyed” by the municipality in carrying out the improvements, the market value of such property, from which value there can be no deduction on account of either any general or special benefits or increase in value that may have resulted to the remaining property from the improvements; but where the property is “injured” merely, as is here alleged, then the measure of the damages is the difference between the market value of the property so injured before and after the injury — in ascertaining which, however, there must be taken into consideration not only the decreased value of the property on account of the injury, but the increased value, if any, resulting from special benefits occasioned by the improvements.—Eutaw v. Botnick, 150 Ala. 433, 43 South. 739; Montgomery v. Maddox, 89 Ala. 181, 7 South. 433; A. & F. R. R. Co. v. Burkett, 42 Ala. 83; Jones v. New Orleans R. Co., 70 Ala. 232; C. & W. R. Co. v. Witherow, 82 Ala. 194, 3 South. 23; Hooper v. S. & R. R. Co., 69 Ala. 529.

"The issue in the present action, then, is the same as was the issue before said municipal assessing board, to wit: Has the value of plaintiff’s property, SO' alleged to have been injured, been on the whole increased or diminished as a result of the improvements, after considering both the detriment or injury done the property and the special benefits derived to it from such improvements and setting off the one against the other? Only'in case its value has been diminshed — that is, that the amount of the injury exceeds the value of the special benefits — ■ can the plaintiff recover. — Authorities supra.

The said board of commissioners of defendant city, as alleged in said plea A, determined, before this suit was brought, this issue against the plaintiff, and found, as seen, that the value of the property had been increased as a result of the improvements, after setting off, as they necessarily did, against the injury done it, the special benefits it sustained. Does not their adjudication therefore, when properly pleaded, estop the plaintiff from now bringing the correctness of that decision into question in this, a collateral proceeding between him and the city? The .vital issue there was, as seen, the same as the vital issue here, and the board there had jurisdiction, as seen, to determine that issue. They held that the value of the property had been increased, and not diminished. Of course, as before said, if said board had found that the value of the property had been diminished, rather than increased, after setting off the injury against the special benefits, then their jurisdiction would have ceased, since they had not, under the law, any power or authority to assess or award the plaintiff any damages, bnt as to these needs leave him t.o pursue a right of action, as here, unless the city first proceeded with condemnation proceedings. But the board did have power and authority to determine whether the value of the property had been increased or diminished, and this by weighing the injury done it against the special benefits received; because such a determination was, as seen, absolutely necessary to the jurisdiction conferred by law upon them-to assess or not assess the property- — -their right to assess depending solely upon the fact, if a fact, that the value of the property had been increased as a result of the special benefits.—Constitution, § 223; Code, § 1373; Birmingham v. Wagenseler, supra.

’(8-10) It has become a fundamental principle regarding judgments that an issue once in fact tried and determined or necessarily involved in the issue- that was tried and determined before a court of competent jurisdiction is, until reversed or annulled by direct proceeding, conclusive as to both the law and the fact involved in the issue.—S. & N. R. Co. v. Henlein, 56 Ala. 368. To what extent, as to 'the persons so concluded, depends upon the character of the judgment whether it is one in personam or one in rem. Judgments “in personam” are inter partes and though conclusive even against strangers as to the fact of its rendition and the resultant legal consequences are -not binding as to the issues involved (the trial of Avhich resulted in the judgment) except upon parties and their privies; while judgments strictly “in rem” are inter omnes by virtue of the power and control of the state over the res and irrevocably determine its status or title against all persons irrespective of Avhet-her they had any other than constructive notice of the litigation or Avhether they were parties in fact or not. — 24 Am. & Eng. Ency. Law, 827-829; Id. 755.

(11-13) This rule as to the conclusiveness of judgments applies generally to all varieties of judgments, decrees, or orders made by courts of competent jurisdiction, in all kinds of judicial proceedings, such as, among others, eminent domain proceedings, attachments, garnishment, foreclosure, partition, tax judgments, adjudications in bankruptcy, etc., and to all kinds of courts or legal tribunals, when acting, judicially under authority of law and as to matters within their jurisdicton, and to officers and boards of state or muncipal officers so acting and under such conditions or circumstances that their decisions have the force and effect of judgments. —23 Cyc. 1056, 1115. And it is not the identity of the cause of action which determines the conclusiveness of a former judgment upon a subsequent suit, but merely the identity of the issue involved in the two1 proceedings. If an issue presented in a subsequent suit between the same parties or their privies is shown to have been determined in a former one, the question is res judicata, although the actions are based on different grounds or tried on different theories, or are instituted for different purposes and seek different relief.' — 24 Am. & Eng. Ency. Law, 780, 781.

The issue, as before pointed out, before defendant’s board of commissioners, and the issue here, is the same upon the question as to Avhether the value of the property injured Avas, when setting off against such injury the special benefits derived from the improvements, increased or diminished in value on the Avhole — a question which said board there had necessarily to determine as a basis for deciding AAdiether or not an assessment could be levied upon the property for any portion of the costs of the improvement (Birmingham v. Wagenseler, supra), and a question which the jury here has necessarily to determine as a basis for deciding whether or not the plaintiff is entitled to recover at all (Eutaw v. Botnick, supra). The board there, as seen, determined that its value had been increased at least to the extent of $37.80, and the effect of their judgment was by operation of law to create a lien upon the property in favor of the defendant city for that sum, which lien might be enforced by the city in the manner provided by the statute or sold and transferred or assigned to another. — Code, §§ 1384-1387.

(.14) The plaintiff cannot in this, a collateral action, be heard to impeach that judgment by saying, as he does in effect do in this suit, that the value of the property has been diminished and not increased, after setting off against injury done the special benefits received, and that, instead of the city’s having a lien upon such property for the amount of the assessment, the assessment is void because the value of the property was in fact diminished rather than increased, and that the city owes him damage as a result of the work, rather than that he owes ok his property is bound to the city for the amount of the assessment. Suppose the city had enforced, as authorized by statute, its alleged lien upon the property, and the property had been sold, could the plaintiff here maintain ejectment against the purchaser, provided the proceedings of the defendant city’s board of commissioners leading up to the assessment were not void? No .suggestion is made by demurrer or otherwise but what those proceedings were had in full compliance with every requirement of the statutes before cited as governing such matters; hence Ave are assuming, without pausing to inquire into, the validity of those proceedings. Of course, if . those proceedings were void, then they could be assailed in any collateral action. — 24 Am. & Eng. Ency. Law, 829. The demurrer, as said, does not invite the consideration of this question, but, confessing the validity of the proceedings, it asserts that the issue here was not involved and was consequently not adjudicated there. This is the sole insistence of appellee’s counsel; and the authorities cited (Birmingham v. Wagenseler and Eutaw v. Botnick, supra) show, we think, that he is in.error.

(15) It appears from the plea that notice of the assessment as required by section 1377 of the Code was given. The plaintiff could under the law have thereupon filed a protest and objection to the assessment, insisting, as here, that the value of his property, considering injury suffered against special benefits sustained, had been diminished rather than, as the board had found, increased; and if, upon the hearing by the board of such protest or objection, they still -were of opinion that the value of the property had upon the whole been increased, not considering general benefits, plaintiff had the right to appeal to the circuit court, or court of like jurisdiction, and have the issue determined by a jury (Code, § 1359 et seq.; Huntsville v. Pulley, 187 Ala. 367, 65 South. 405), and if the jury had found in his favor no assessment whatever could have been made against his property, and he likewise would not have been foreclosed from bringing the present action for the injury done it.

(16) Section 1381 of the Code makes his failure to file a protest or objection, which is the case here, an estoppel and in effect precludes him from thereafter saying that the value of his property had not been increased and was not therefore subject to the assessment.—Birmingham v. Wills, 178 Ala. 198, 59 South. 173; Birmingham v. Abernathy, 178 Ala. 221, 59 South. 180; Garner v. Anniston, 178 Ala. 430, 59 South. 654. The proceedings were in rem, it is true, and were based, as to notice, solely on a notice given by publication in a newspaper published in defendant city, where the property was located, and not by any personal notice seiwed on plaintiff; yet such notice met, as seen, the requirements of the statute (Code, § 1377), and also of the “due pro-' cess” provisions of the Constitution as pointed out in cases below cited; and the proceedings, resulting in the judgment of the board assessing the property, fixed the status and the issue, without a determination of which such status could not in the nature of things have been so fixed (that is, that the value of the property had been, after leaving out of the consideration general benefits, but considering special benefits and injury, increased and not diminished by reason of the improvements), is, we think, to this extent binding on the plaintiff as the owner of the property and on all the world, until reversed or annulled by appeal or other direct proceedings taken to that end.—Friedman & Loveman v. Shamblin, 117 Ala. 454, 23 South. 821; Birmingham v. Wills, supra; Birmingham v. Abernathy, supra; Garner v. Anniston, supra; Birmingham v. Wagenseler, supra; Eutaw v. Botnick, supra; Decatur v. Scharfenberg, 147 Ala. 367, 41 South. 1025, 119 Am. St. Rep. 81; Decatur v. Smith, 148 Ala. 682, 41 South. 1028; Birmingham v. Klein, 89 Ala. 461, 7 South. 386, 8 L. R. A. 369; Constitution, §§ 235, 238; Code, § 1359 et seq.; Moore v. Cottingham, 113 Ala. 148, 20 South. 994, 59 Am. St. Rep. 100; Lyons v. Hamner, 84 Ala. 197, 4 South. 26, 5 Am. St. Rep. 363; 4 Myf. Dig. 728; 5 Mayf. Dig. 845; 6 Mayf. Dig. 796; 24 Am. Eng. Ency. Law, 827-829, 755; 3 Cyc., under the title “Judgments.”

Certainly, under the authorities cited, there can be no question but what such judgment is binding to the extent .that it fixed the status of the property as to the fact of defendant’s city lien upon it, and that it forever precludes the defendant and all other persons from gainsaying in any collateral proceeding the existence of such lien; but the real'and serious question is: Does that judgment conclude the plaintiff from denying the facts upon which it and the resultant lien are predicated, without which the law, as seen, authorizes neither the judgment nor the lien, and which were, as before pointed out, necessarily determined against the plaintiff by defendant’s said board as a foundation for the judgment and lien?

From Mayfield’s Digest, vol. 6, p. 796, treating of the subject of res judicata, we take the following as there quoted approvingly from 11 Eng. Ruling Cas. 46, and supported in 1 Black on Judgments, § 795, to wit: “It is commonly said that such a judgment [a judgment in rem] ‘binds all the world.’ It is more accurate to. say that such a judgment is conclusive against any person in a subsequent controversy, where the grounds of the adjudication, or the fact of its rendition, or any of its legal consequences, become relevant and material facts.”

In Durant v. Abendroth, 97 N. Y. 140, the court said: “The general rule as to proceedings in rem is that when the property is within the jurisdiction of the court pronouncing the judgment, whether a domestic or foreign tribunal, whatever the court settles as to the right or title, or whatever disposition it makes of the property, is valid in every country. * * * But it is not universally settled that the judgment is conclusive as to the facts or allegations on which it is founded.”

We take it therefore to be the general rule, subject to exceptions, that a judgment in rem is conclusive not only as to the matters actually declared and expressly determined, hut also Avith respect to- the grounds or facts upon which such judgment is founded. — Van Fleet’s Former Adjudication, vol. 2, p. 1022, § 515 et seq.; cases cited in 11 Am. Dig. (Dec. Ed.) p. 803 et seq.

We find no legal reason Avhy the general rule should be departed from in this case. — Elliott on Roads & Streets, §§ 731, 732 and note, 746-748; 23 Cyc. 1220, 1408-1410.

Of course, as before pointed out, where a person’s property is Avholly taken or destroyed by the city in making the improvements, no assessment by the city against remaining property of that person Avould estop him from suing for the value of his property that had been wholly taken or destroyed; but Avhere real estate is injured merely, as is the case here, as the result of the work done in carrying out the improvements, then, when the assessing board of the municipality makes an assessment against the property in pursuance of law for its proportionate cost of the improvements, it must be presumed that in doing so they first reached a conclusion that the value of the property had as a result of the improvements been on the whole increased, after considering, as the law requires, not any general benefit derived to the property from the improvement, but all special benefits sustained and all injury and detriment suffered, and that they weighed the one against the other and found that the value of the special benefits exceeded the amount of the injury and detriment done; and as a consequence that the value of the property had been increased as a result of the special benefits derived from the improvements.—Birmingham v. Wagenseler, supra; Constitution, § 223; Code, § 1373.

This being also the main issue in this suit Eutaw v. Botnick, supra), we are of opinion the court erred in sustaining the plaintiff’s demurrers to defendant’s said plea A, and for this reason the judgment is reversed.

Reversed and remanded.