B. & O. R. R. v. City of Bellaire

Ohio Supreme Court

B. & O. R. R. v. City of Bellaire

60 Ohio St. (N.S.) 301

DecidedMay 9, 1899

StatusPublished

This text of 60 Ohio St. (N.S.) 301 (B. & O. R. R. v. City of Bellaire) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

B. & O. R. R. v. City of Bellaire, 60 Ohio St. (N.S.) 301 (Ohio 1899).

Pincite

Opinion

Spear, J.

Did the circuit court err in dismissing the appeal? We think it did.

The case made in the petition is not an action for the recovery of money only, within the meaning of section 5130, Revised Statutes. The land upon which assessments were to be charged had never been platted or subdivided into lots, but was “land in bulk.” It was, therefore, the duty of the council, in making an assessment, to fix the depth of the land so that it would be a fair average depth of the lots in the neighborhood which should be subject to such assessment. This duty the petition shows that the council wholly neglected. That body undertook to make an assessment, but failed to make a legal one. Hence no valid assessment existed at the commencement of the action, and no judgment could properly be demanded until the court, acting under the authority given by section 2289, Revised Statutes, had heard proof, and itself supplied the omission of the council in this respect. In other words, the court was asked to correct the proceedings by acertaini'ng and find[309]*309ing what amount should be equitably charged against the land, and then, a proper assessment being made, to award judgment and order of sale.

This presented an issue which, under section 5131, Revised Statutes, was triablepby the court.

The judgment of the circuit court dismissing the appeal will be reversed and the cause remanded to that court for further proceedings according to law.

Reversed.

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Spear, J.

Did the circuit court err in dismissing the appeal? We think it did.

The case made in the petition is not an action for the recovery of money only, within the meaning of section 5130, Revised Statutes. The land upon which assessments were to be charged had never been platted or subdivided into lots, but was “land in bulk.” It was, therefore, the duty of the council, in making an assessment, to fix the depth of the land so that it would be a fair average depth of the lots in the neighborhood which should be subject to such assessment. This duty the petition shows that the council wholly neglected. That body undertook to make an assessment, but failed to make a legal one. Hence no valid assessment existed at the commencement of the action, and no judgment could properly be demanded until the court, acting under the authority given by section 2289, Revised Statutes, had heard proof, and itself supplied the omission of the council in this respect. In other words, the court was asked to correct the proceedings by acertaini'ng and find[309]*309ing what amount should be equitably charged against the land, and then, a proper assessment being made, to award judgment and order of sale.

This presented an issue which, under section 5131, Revised Statutes, was triablepby the court.

The judgment of the circuit court dismissing the appeal will be reversed and the cause remanded to that court for further proceedings according to law.

Reversed.

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Bluebook (online)

60 Ohio St. (N.S.) 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-o-r-r-v-city-of-bellaire-ohio-1899.