Opinion
Docket No. 1,790.
Decided November 29, 1968. Rehearing denied January 13, 1969.
Appeal from Oakland, Pratt (Phillip), J. Submitted Division 2 December 5, 1967, at Lansing. (Docket No. 1,790.) Decided November 29, 1968. Rehearing denied January 13, 1969.
Complaint by James E. Wells against the city of Southfield to enjoin proposed installation of a sewer. Accelerated judgment for the city. Plaintiff appeals. Reversed and remanded for trial.
James E. Wells, in propria persona. James M. Ginn, for defendant.
On December 7, 1964, the assessment roll for the installation of a sewer in the city of Southfield was confirmed. The project has been completed. Plaintiff had brought suit in March, 1964, to enjoin the proposed project, but the suit was not prosecuted until after the work was finished, when plaintiff amended his complaint to pray that the assessment be declared invalid and to ask for the return of the assessed installments he had assertedly paid under protest.
The trial court granted the city's motion for accelerated judgment which was based on failure to comply with section 9.26(c) of the Southfield city charter which reads as follows:
"No suit or action of any kind shall be instituted or maintained for the purpose of contesting or enjoining collection of any special assessment unless within thirty (30) days after confirmation of the special assessment roll, written notice is given to the Council of intention to file such suit or action, stating grounds on which it is claimed such assessment is illegal and unless such suit or action shall be commenced within sixty (60) days of confirmation of the roll."
Although other questions were stated and argued on appeal, inasmuch as the motion was based solely on the asserted failure to comply with that charter provision and the judgment by its terms determined only that issue, we have addressed ourselves only to the question of whether these charter provisions requiring notice of intention to sue and limiting the time for suit are valid.
For the reasons set forth in Smuczynski v. City of Warren (1968), 14 Mich. App. 464, we held that the previously mentioned provisions of section 9.26 (c) of the Southfield charter are invalid and hence do not bar this suit.
Although not raised in plaintiff's original motion papers, this issue was presented to the trial judge in "Plaintiff's Brief after hearing on Accelerated Judgment Motion."
Reversed and remanded for trial, with costs to appellant.
LEVIN, J., concurred with T.G. KAVANAGH, J.
I am unable to agree with the majority because the question of Southfield charter section 9.26(c) contravening the State statute of limitations was not raised below and it is not properly before this Court nor may it be considered by us. Case v. Beech Lanes, Incorporated (1954), 338 Mich. 631.
In view of the foregoing and because I did not participate in Smuczynski v. City of Warren (1968), 14 Mich. App. 464, I decline further comment.
I would affirm.