City of Columbus v. Schneider

14 Ohio C.C. (n.s.) 312

• Court: Franklin Circuit Court
• Decided: January 21, 1895
• Status: Published

Opinion

This case has been submitted to us upon an agreed statement-of facts and the pleadings, and the only questions remaining to be determined are:

First. Were the decisions made in the case of Woodruff v. Columbus and Patterson v. same, adjudications upon the issues presented, and .

Second. Was the decision in the case of Patterson v. Williams an adjudication against the city, which precludes its obtaining a judgment here.

The question as to the statute of limitations set out in the an-' swer and the rights and privileges of the parties under the ‘‘Penn Act,” as that act has been construed by the Supreme Court, were examined by us and decided upon the demurrer tc. the petition and we are still of the opinion that they do not constitute any defense to plaintiff’s claim.

As to the first question: Both these cases- were brought to restrain the treasurer from collecting these assessments and the-final entries show, not a dismissal of the action, but a submission upon the issues, a finding against the plaintiffs and a dismissal of their petitions. This was an adjudication and being unreversed, is conclusive.

As to the second question: Nowhere in the suit of Patterson v. Williams was the validity of this assessment challenged except in the supplement and amendment of George Williams, Jr., to his answer and cross-petition, filed November 28, 1887, and in that only as to the right of the city to enforce that portion of the same, assessed against the portion of the frontage, which after the improvement had been devoted to streets. For the purpose of testing this question and this question only, the city was made a party and its demurrer to this question was sustained. On the other hand, Williams, the grantor of Wm. H. Innis, and Wm. H. Innis, the immediate ancestor of these defendants, averred its validity and called upon the court to order the same paid, though contending as to who was responsible for its non-payment ; and in its finding made on the cross-petition of said Innis, the court expressly' held it to be 'a valid and subsisting lien on these lots, stated the amount of the same, and granted to said Innis an order of sale upon the mortgage given.by Williams.to him to indemnify him against this very assessment, and property to the amount of over $1,400 was sold under that order.

This'wás an-adjudication in favor of the lien rather than against it.

As it is nowhere claimed in the record that any part of this assessment has been1 paid it follows that the plaintiff is entitled-to a decree for the amount of the same and an ord&r to sell the premises in case of non-payment.

The tax duplicate shows the following amounts as due: lot 56, $1,312.35; lot 57. $823.54; lot 58, $823.54; lot 59,'$'823.54; lot ,60, $823.54; lot 61, $533.43; lot 105, $823.54, and lot 104, $1,349.75; total, $7,313.23.

As these figures áre different from those set out in the petition theymay be subject to correction.

The petition -also claims that five per cent, penalty should be added, but as no authority has been cited for making this addition; we will not decide whether it should attach or not, until counsel have an opportunity to express their views. The decree will he for the plaintiff in conformity to the foregoing decision.