Columbus v. Schneider

12 Ohio Cir. Dec. 781, 14 Ohio C.C. (n.s.) 312, 1895 Ohio Misc. LEXIS 224

• Court: Ohio Circuit Courts
• Decided: January 21, 1895
• Status: Published

Opinion

Stewart, J.

This case h,as been submitted to us upon an agreed statement of facts and the pleadings, and the only questions remainingto 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 ot limitations set out in the answer 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 to the petition and we are still of the opinion that they do not constitute any defense to plaintiff’s claim. See ante, 000.

As to the first question: Both these cases were brought to restrain the treasurer lrom 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 ot 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 enlorce 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 claim was sustained. On the other hand, Williams, the grantor of Wm. H. Innis, and Wm. H. Innis the immediate ancestor ot 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 was an adjudication in favor of the lien rather than against it.

As it is nowhere claimed in the record that any part ot this assessment has been paid it follows that the plaintiff is entitled to a decree lor the amount of the same and an order to sell the premises in case of nonpayment.

The tax duplicate shows the following amounts as due:

Lot 56.. $1312 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

Lot 104. 1349 75

Total $7313 23

As these figures are different from those set out in the petition they may be subject to correction.

The petition also claims that five per cent, penalty should be added, but as no authority has been cited lor 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 be lor the plaintiff in conformity to the foregoing decision.