Neff v. Covington Stone & Sand Co.

108 Ky. 457 | Ky. Ct. App. | 1900

Original opinion op the court by

JUDGE HOBSON

Affirming, on March 10, 1900.

These nine appeals have been heard together. The suits were brought to enforce liens for street improvements in Central Covington, a town of the sixth class. A great many grounds of reversal are urged, none of which seems-to us available.

The actions were not prematurely submitted, as the pleadings raised no issue of fact material to the controversy. All the questions presented in the voluminous briefs of counsel filed are matters of law arising on the face of the record.

A corporation may contract by a name other than its corporate name, and from the bond and contract here, taken together, it is apparent that the appellee was the contracting party whose bid was accepted by the town authorities. This was clear at the time to all the parties.

A town of the sixth class is not required to> improve a street throughout its entire length, 'but may limit the improvement to the necessities of the town at the time. Now, is the statute unconstitutional because it allows the trustees a discretion as to how the improvements are to be paid for? Such statutes have been in existence in the State for years. The statuté in the case of Town of Bowlig Green v. Hobson, 3 B. Mon., 478, is very different from the one before us. While the town authorities can not improve a street by piecemeal, so as in all to exceed 25 per centum of the value of the property to> be charged, it does not appear that this has been done in this case, and such a question can not be raised unless it appears that the limit has been in fact exceeded.

The contract must be let to the lowest bidder, but there is enough in the record before us to raise the presumption that the trustees did their duty. The records of towns are not held to the same strictness as courts of record. City of Covington v. Ludlow, 1 Metc., 295.

The judgments, when taken in connection with' the* pleadings, sufficiently identify the property ordered to be sold. It is sufficient if the petition and judgment together identify the property with such certainty that the purchaser will know what he has bought, and the judgment can be executed without difficulty.

On the whole record, we see no substantial error to the prejudice of appellants as the pleadings stood when the cases were submitted. ¿Judgments affirmed.

Extended Opinion by Judge Hobson on May 10, 1900. Revebsing in Each oe ti-ie Cases.

Upon a reconsideration of these cases, our attention is called to some defects in the judgment not observed on the original hearing, from our attention being directed mainly then to other matters; and we have also concluded that under previous decisions of this court a judgment of sale should sufficiently identify the property, without reference to the pleadings or other papers filed in the action. The judgments in these cases simply direct the sale of the property according to rule No. 40 of the court below, without fixing the time or terms, of sale, or the notice to be given by the officer before selling. A judgment pre. cisely like this was held insufficient in Meyer v. City of Covington, 45 S. W., 769, where this court, after reviewing the previous cases, said: “There should be a sufficient-description of the real estate' ordered to be sold as will enable the purchaser or bidders to know with reasonable certainty what property was being offered for sale, and the report of the commissioner should in like manner be sufficient, to the'end that there should be no controversy after the sale as to what property was sold or purchased. Explicit directions should be given to the commissioner as to the time, terms, and place of sale, in order that all such sales should be made as required by law. The judgment should be explicit in regard to the property ordered to be sold, as well as to the time, terms, and place of sale, so that the commissioner should not be required to< look to any other paper or order for directions. If the commissioner should be allowed to look to anything other than the judgment as his guide, he might very innocently sell property not adjudged to be sold, or sell it upon terms not authorized by law. In other words, the judgment should specifically direct the commissioner what to do, and not leave him to draw his conclusions from any other paper, or from any other source of information.” Under tlie rule thus established, the judgments in these cases are insufficient. The judgments in each of these cases are therefore reversed, and the causes remanded for judgments and further proceedings not inconsistent with this opinion.