Opinion
8 Div. 522.
October 30, 1928.
Appeal from Circuit Court, Madison County; James E. Horton, Judge.
Appeal of Fannie S. Cabaniss to the circuit court from an assessment against her property, fixed by the city council of Huntsville under an improvement ordinance. From a judgment for plaintiff (City of Huntsville), defendant appeals. Affirmed.
See, also, 217 Ala. 678, 117 So. 316.
Appellant objected (third proposition) that the ordinance did not describe the general character of the materials to be used for the improvement as required by the statute. Code, § 2176. Said ordinance provides that the driveway shall be paved with asphaltic concrete paving, sheet asphalt paving, Warranite bitulithic paving, one course Portland cement concrete paving, vertical vitrified brick paving, asphalt filled, Tarvia double-seated paving, or Willite sheet asphalt, with specifications as to each. The final selection of the type of paving material was reserved by the council.
Spragins Speake, of Huntsville, for appellant.
The court erroneously rendered a personal judgment against appellant. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Payne v. Spragins, 207 Ala. 264, 92 So. 466; City of Decatur v. Southern R. Co., 187 Ala. 364, 65 So. 536. There was a failure to comply with the statutory requirements in the passage of the ordinance. Code 1923, § 1993; Michael v. State, 163 Ala. 425, 50 So. 929. The ordinance does not specify the general character of the material to be used. Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317.
Lanier Pride, of Huntsville, for appellee.
The judgment is not a personal judgment, but, even if so, it would not constitute reversible error. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325. The ordinance was not one of a permanent nature. Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301. The ordinance sufficiently specified the material to be used. Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317; Sanders v. City of Troy, 211 Ala. 331, 100 So. 483.
The appeal here is by a property owner from a judgment of the circuit court, on appeal from proceedings of the city council of Huntsville, Ala., making an assessment against certain property of appellant for street improvements.
Three assignments of error appear of record and are insisted upon to effect a reversal of the judgment appealed from. There appears to us no merit in either of these insistences. The judgment rendered fixed a lien on the property subject to the assessment and ordered that said property be sold for the satisfaction of the judgment lien and costs unless such judgment and costs were paid within 5 days from its date. We do not construe this judgment entry as being a personal judgment, as insisted by appellant; but, if this were true, the judgment of necessity would be here corrected, as provided by the rule announced in Hood v. Bessemer, 213 Ala. 225, 104 So. 325.
The next proposition, in which appellant insists that the ordinance or resolution providing for the paving and the fixing of assessment was an ordinance or resolution of a permanent nature, is fully answered in the case of Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301. No elaboration of this proposition need be indulged. In the Pierce Case, supra, the Supreme Court held such ordinances are not the ordinances or resolutions contemplated by those sections of the Code relating to the passage, approval, and authentication of ordinances and resolutions of a permanent nature, nor intended to be of permanent and general operation.
We are of the opinion that the case of Sanders et al. v. City of Troy, 211 Ala. 331, 100 So. 483, is conclusive of the third proposition insisted upon by appellant. See, also, Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317.
No reversible error appearing, the judgment of the circuit court appealed from is affirmed.
Affirmed.