Summary
In Village of Sebring v. Smith, 123 Ohio St. 547, 176 N.E. 221, it was held that notice directed to Anna Smith, who had died previously, was sufficient to advise her heir of the pendency of assessment proceedings.
Summary of this case from ENTRE NOUS CLUB v. TORONTOOpinion
No. 22525
Decided April 15, 1931.
Municipal corporations — Assessments — Notice of passage of resolution — Section 3818, General Code — Statute relates to manner of service — Notice addressed to deceased wife, but served upon husband, sufficient, when.
1. Section 3818, General Code, relates to the manner of service of the notice of the passage of a resolution by a municipal council to improve a street and to assess the costs thereof upon adjoining property; its purpose is to advise the property owner of the passage of such resolution.
2. That section is complied with if the owner of a lot, recently acquired from his wife's estate, receives such notice, served at his residence, containing a copy of the resolution so passed by council relative to the proposed improvement, even though such notice may have been addressed to his deceased wife.
ERROR to the Court of Appeals of Mahoning county.
This is an action to reverse the Court of Appeals of Mahoning county. The facts incident to the controversy are that C. B. Smith enjoined the village of Sebring, the county auditor, and the county treasurer of Mahoning county, Ohio, from placing installments of the assessments on the tax duplicate and from collecting or attempting to collect any of the assessments, by process of law or in any other manner, for the paving of Ohio avenue in the village of Sebring.
The said village proposed to improve Ohio avenue from Johnson road, which is the west corporation limit of the village of Sebring, to Twelfth street, which is the east corporation limit of that village. In December of 1926 the village clerk searched the auditor's tax duplicate of Mahoning county for the names of the property owners on Ohio avenue. At that time Anna Smith, wife of C.B. Smith, was the owner of lot No. 1585. Anna Smith died before April 11, 1927, when the council of the village of Sebring passed resolution No. 320, determining to improve Ohio avenue by resurfacing and repaving.
Between the date of the searching of the records for the names of the owners of properties, in December, 1926, and the date of the passage of the resolution on April 11, 1927, C.B. the husband of Anna Smith, had become the owner of said Lot No. 1585, securing a deed therefor from his wife's administrator. Afterwards, a notice and copy of the resolution to improve Ohio avenue was served upon the owner of lot 1585 by leaving same at the residence. However, that notice contained at the top thereof the name Anna Smith, and the return was made by the clerk as being served upon "Anna Smith, deceased."
It is not disputed that C.B. Smith received this notice when it was left at his home and that at the time of the service of such notice he was in fact the owner of said lot 1585. He now contends that the assessment is invalid for the reason that the notice contains on the face thereof the name of Anna Smith, or Anna Smith, deceased, instead of his own name, C.B. Smith, and that such notice is in violation of Section 3818, General Code.
The common pleas court and the Court of Appeals allowed an injunction restraining the collection of these assessments, and the village prosecutes error to this court to reverse such judgment.
Mr. Donald W. Seiple, for plaintiff in error.
Mr. Ben L. Bennett and Mr. P.V. MacKall, for defendant in error.
The essential requisites sought to be attained by the law with reference to notices of this character are to bring knowledge home to the owner of the property of the passage of a resolution by the council to improve the street in question and that the cost thereof will be assessed upon adjoining property owners. The law further requires that such notice shall be served on the owner in the same manner as a summons is served in a civil action. The sections relative thereto provide, in part, as follows:
Section 3818. "A notice of the passage of such resolution shall be served by the clerk of council, or an assistant, upon the owner of each piece of property to be assessed, in the manner provided by law for the service of summons in civil actions."
Section 11286. "The service shall be made at any time before the return day, by delivering a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence * * *."
It is to be noted that Section 3818, General Code, relates to the manner of service, and not that the notice itself shall have the formalities of a summons in a civil action. The purpose is to bring home knowledge to the property owner of the passage of the resolution by council. The summons in a civil action, by the terms of Section 11286, General Code, may be served by leaving a copy thereof, with the endorsements thereon, with the defendant personally, or by leaving a copy at his usual place of residence.
It is not denied that the notice received by Smith was a true copy of the resolution to improve; that it was served by the clerk of council within the time prescribed by law; that at the time of such service C.B. Smith was in fact the owner of lot 1585, and the manner of service was by giving such notice to some person at Smith's residence. The record shows that Smith admits seeing this notice, and during the oral argument in this court it was admitted that Smith had received the notice.
We deem this service of notice upon C.B. Smith, as shown by this record, a compliance with Section 3818, General Code. The fact that such notice may have contained the name of Anna Smith at the top thereof, and the return showed service upon Anna Smith, deceased, was immaterial so long as C.B. Smith, the owner of the "piece of property to be assessed," was thereby receiving written notice of the passage of a resolution by the village council to improve this street by resurfacing and to assess the adjoining property owners. Such notice would not and could not have been more effectually brought home to C.B. Smith as owner of the property if it had contained his own name at the top instead of the name of his deceased wife. It was the same property, and he certainly knew he was the owner. He had lived there for more than four years with his wife, and he certainly knew that the property, of which he was then the owner, he had lately acquired from his wife and had an administrator's deed therefor, and that the property referred to, which the village proposed to affect by the resolution to improve, was in truth and in fact the same identical property. With such knowledge, he was fully advised of every right which he had in the premises, and must, therefore, be held accordingly.
The cases of City of Cincinnati v. Sherike, 47 Ohio St. 217, 25 N.E. 169, and Joyce v. Barron, Treas., 67 Ohio St. 264, 65 N.E. 1001, are readily distinguishable upon the facts. In the former case no written notice was served, as required by law; in the latter case, no notice was served at all.
The language used in the case of People, ex rel. De Frece, v. Lathers, 141 App. Div. 16, 125 N.Y. S., 753, 756, is apt in the present instance: "She holds her property subject to the right of the community to impose those reasonable burdens commonly accepted by the residents of municipalities, and she is asked to pay only the cost of doing the work which it was her duty to do, with the incidental cost of collecting the same. To permit highly technical objections to override the obvious justice of requiring the relator to pay her portion of the cost of doing the work which it was her duty to do would be to exalt form over substance, and to work a wrong."
Being of opinion that the notice served in this case was a legal notice in compliance with the provisions of Section 3818, General Code, the injunction restraining the village from collecting the assessment because of defective notice should have been denied. It follows, therefore, that the judgments of the courts below must be reversed and final judgment entered for the village.
Judgment reversed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.