Simms v. O. L. Crigler Co. , 47 S.W.2d 686 ( 1931 )

WILLSON, C. J.

(after stating the case as above).

Appellants insist that to authorize the judgment rendered by the court below it •must have appeared, and did not, that the city of Mt. Pleasant had power to issue the paving certificate sued upon, and must have appeared, further, and did not, if the city had such power, that it exercised it in the way provided by law.

We do not understand appellants to be in the attitude of denying the existence of power in the city, to enter into the contract with appellee and to issue the certificate, if the city had a right to invoke power conferred by the act 1927 (Gen. and Special Laws, 1st Called Session of the Fortieth Leg., chapter 106, pp. 489 to 495 [Vernon’s Ann. Civ. St. art. 1105b, §§ 1-14]) authorizing cities, towns, and villages to improve streets, etc. The contention seems to be that the city did not have a right to look to that act for such power because of the provision in section 15 thereof (Vernon’s Ann. Civ. St. art. 1105b note) that it should “not apply to cities not having more than one thousand inhabitants,” and the fact, as asserted, that it did not appear the city had more than 1,000 inhabitants. We think the contention is not tenable. Courts take notice, without other proof than that furnished by the census compiled by the federal government, of the population of cities, towns, and villages. 23 C. J. 161, and cases cited in note 84, p. 162; .15 R. C. L. 1129; Smith v. Patterson, 111 Tex. 535, 242 S. W. 749; Urban v. Harris County (Tex. Civ. App.) 251 S. W. 594; Kendall v. Ramsey, 179 Ark. 984, 19 S.W.(2d) 1020; Heather v. City of Palmyra, 311 Mo. 32, 276 S. W. 872; Watts v. State, 215 Ala. 95, 109 So. 762; Angelo v. City of WinstonSalem, 193 N. C. 207, 136 S. E. 489, 52 A. L. R. 663; Ry. Co. v. Wood, 126 Okl. 275, 259 P. 262; State v. Morris, 199 Ind. 78, 155 N. E. 198; In re Gibbs, 51 S. D. 464, 214 N. W. 850; Wehrle v. City of Los Angeles, 211 Cal. 70, 293 P. 67. It appeared from said census that in 1920 Mt. Pleasant had a population of 3,137 and in 1930 a population of 3,627.

Appellants insist, further, that' if the city of Mt. Pleasant had such power in any event, it did not appear that requirements of'the law indispensable to a right in the city to exercise such power had been complied with and that the judgment complained of was erroneous for that reason.

It was provided in the act of 1927 referred to in the statement above that: “If [quoting] any such certificate [as the one sued on] shall recite substantially [and the one sued on did so recite] that the proceedings with reference to malting the improvements therein referred to have been regularly had in compliance with the law and that all prerequisites to the fixing of the assessment "lien against the property described in said certificate and the personal liability of the owner or owners thereof have been performed, same shall be prima facie evidence of all the matters recited in said certificate, and no further proof thereof shall be required.” Section 6 of the act (Vernon’s Ann. Civ. St. art. 1105b, § 6).

However, appellants insist that the prima facie evidence furnished by the recitals in the certificate of compliance with the requirements of the law applicable was sufficiently rebutted by evidence they adduced showing noncompliance with such requirements. We do not think so, and overrule the contention. It appears, we think, that care was used to comply with the requirements of said act 1927, and that those requirements were, substantially, complied with. Moreover, if it did not so appear, we think it did appear that appellants’ right to assert to the contrary became barred before this suit was instituted. It was provided in said act of 1927 that: “Anyone {quoting] owning or claiming any property assessed, or any interest therein * * * who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction within fifteen (15) days from the time such assessment is levied; and anyone who shall fail to institute such suit within such time shall be held to have waived every matter which might have been taken advantage of at such hearing, and shall be barred and estopped from in any manner contesting or questioning such assessment, the amount, accuracy, validity, regularity and sufficiency thereof, and of the proceedings and contract with reference thereto and with reference to such improvements for or on account of any matter whatsoever. And the only defense to any such assessment in any suit to enforce the same shall be that the notice of hearing was not published or did not contain the substance of one or more of the requisites therefor herein prescribed, or that the assessments exceed the amoijnt of the estimate.” Section 9 of the act (Vernon’s Ann. Civ. St. art. 1105b, § 9). It appears from evidence in the statement of facts that the assessment in question Was levied October 15, 1927, and that appellants’ answer in which they question the validity of the proceedings resulting in such levy and in the issuance of the paving certificate sued on was not filed until after September 20, 1929. It appears, further, in said statement of facts, the requirement of the statute as to notice to be given property owners who wished to be heard to contest the validity of said proceedings was complied with, substantially.

It appears in the record that by the terms of the paving certificate appellee was to be entitled to recover “reasonable attorney’s fees” and costs he might incur in enforcing payment thereof. It appears, further, that after the jury had returned their verdict and had been discharged, the court over appellants’ objection permitted appellee to prove and himself found that $150 would be a reasonable attorney’s fee. The grounds of appellants’ objection was that what was a reasonable attorney’s fee was a question of fact' which should have been determined by the jury, and which the court was without power to himself'determine. We think the action of the court was erroneous as claimed, and that the error is such as to require a reversal of the judgment and a remanding of the cause to the court below for a new trial, unless appellee sees proper to remit the $150 adjudged to him as attorney’s fees.

Other contentions are made in appellants’ brief, but we think none of them presents error requiring a reversal of the judgment.

The judgment will be reversed, and the cause will be remanded to the court below for a new trial, unless appellee shall within twenty days from the date hereof file with the clerk of this court a remittitur of $150 of the amount of the judgment, in which event the judgment will be affirmed for the amount thereof, less $150.