City of Jackson v. Mims ( 1920 )

Stevens, J.,

delivered the opinion of the'court.

This is a companion case to that of the City of Jackson v. Mrs. Agnes Buckley (No. 21313), 85 So. 122, this day reversed. By agreement of counsel the appeal record in this case is the same as the record in the Buckley Case, and further:

“It is agreed that the points in this case are indentical with the points in the Agnes Buckley Case, save that Mrs. Deeta Mims testified that she was not served with notice and the chancellor decided the case on this question of fact for Mrs. Mims.”

Separate briefs were filed in this case, and a portion of the arguement is directed to. question of fact mentioned in the stipulation of counsel to the effect that Mrs. Mims was not personally served with notice to do the work herself. It is agreed in the brief of counsel that the same law questions are involved as in the Buckley Case-. But the' stipulation of counsel that the chancellor resolved this issue of fact in favor of appellee materially differentiates this case from the Buckley Case, and necessitates an affirmance of the decree appealed 'from. There is evidence that supports the finding of fact, and we cannot say the chancellor was manifestly wrong.

The street commissioner did testify positively that personal notice was given appellee in accordance with the statute. The law in force at the time of the proceedings in this case required that the street commissioner upon order of the board should give “thirty days’ notice to the owner or occupant of each piece of property to be assessed,” etc. This law has been amended so as to authorize notice by publication. Against the testimony of the street commissioner is the positive testimony of appellee that notice was not given her. It appears that R. P. Mims, the husband of appellee, signed the petition to have the street paved and the original order of the municipal authorities recites that— “A majority of the resident owners on North State street from Manship street to the North side of Euclid avenue have petitioned for the paving of said street.”

The city contends that appellee is estopped. Estoppel is sought to be based on the fact that appellee’s husband petitioned for the paving and that she herself knew the street was to he paved and stood by and saw the work progress without objection. There is no evidence that the husband'acted as the agent of his wife or had any specific authority so to do. Section 3412, Code of 1906, effective when the work was done, provides for the thirty days’ notice. This provision of the law means, something, and we have no authority to dispense with the re-' quirement. Whether the legislature could dispense with such notice altogether is a question that is not before us. The law as written was not complied with. The failure to give the notice, as found by the chancellor, leads to an affirmance.

Affirmed.