
    APPEAL — ASSESSMENTS—SEWERS.
    [Hamilton Circuit Court,
    January Term, 1901.]
    Smith, Swing and Giffen, JJ.
    Potter et al. v. Norwood (Vil.).
    t. A Proposed Assessment may be Enjoined.
    Where property is already provided with local drainage and does not need other drainage, the owners may enjoin the levy of an assessment fór the cost of construction of a new sewer, and are not required to wait until the assessment is actually levied and then seek to be relieved from it, especially since it is fairer to the corporation to have its right to assess determined before the expense of the improvement is incurred.
    2. Court may Allow Amendments on Appeal, When.
    A court has a right in a case coming to it on appeal to allow amendments in furtherance of justice, where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court.
    8. Case in Which Amendment was Properly Allowed.
    Where during the pendency of a suit in which the plaintiffs were entitled to an injunction to restrain the levying of an assessment against their property for the construction of a sewer, but wherein no temporary injunction was issued, the municipal authorities proceeded to do the work sought to be enjoined and improperly assessed parts of the costs therefor on lots of the plaintiffs, the plaintiffs have the right on appeal in the original action, by way of supplemental petition, under Sec. 5119, Rev. Stat., to setup the fact of such illegal assessment and seek to enjoin its collection. The allegations referred to do not constitute a new or different cause of action, but simply present additional facts as to the same transaction entitling plaintiff to other and different relief.
    Appeal.
    
      W. T. Poster, for plaintiff.
    
      IV. R. Collins, solicitor, for defendant.
    On motion for leave to file amended and supplemental petition.
   Smith, J.

The claim of the plaintiffs in the original petition, filed by them some time in 1897, was substantially this, as we understand : That the village by its authorities, as shown by its resolutions, ordinances and other proceedings, was about to make a contract with some one to take up and remove á sewer which had been constructed in certain streets and avenues of the village, duly dedicated to public use by the proprietors of a subdivision afterwards annexed to the village, and which sewer when constructed was for the use of the abutting lots and lot owners for drainage purposes, and' had been used for that purpose for years, and adopted by the village after the subdivision was annexed. And that the village,, after the old sewer was taken up, was about to put down a new one of the same general character at great cost, and assess the cost of all of said improvement upon the property abutting on said streets where the work was done, and thus on their property. That their said lots that would be so assessed for such cost, do not need local drainage, as they were already provided therewith by the old sewer about to be removed. They therefore prayed that the said village be enjoined from accepting any bids for said proposed work, and from making any sewer thereunder or contract for the removal of the existing sewer, and the construction of the new one, or from levying ;,ny assessment therefor on the property of the plaintiffs, and for such other reliel as they may be entitled to.

An answer was filed by the village as we understand, denying some of the allegations of the petition, particularly those as to the plaintiffs having local drainage, and on a hearing of the case in the common pleas court the petition of the plaintiffs was dismissed, September 7, 189,7. Plaintiffs appealed the case to this court, and about October 25, following filed an amended and supplemental petition and a temporary injunction was allowed on plaintiffs giving bond in the sum of $3,000, but no undertaking was executed. This amended petition does not differ much from the original, but sets up other reasons why their property should not be assessed.

But as no injunction bond was executed by plaintiffs, the village proceeded with the improvement as though no action was pending, and now the plaintiffs seek to file a second amended and supplemental petition, which is resisted by defendant. It avers, substantially, that after the appeal of the cause to the circuit court, the village proceeded to take up their old sewer, and constructed the new one according to the plan adopted, and took the old pipes and appropriated them to other uses, and> on February 21, 1898, passed an assessing ordinance, assessing each front foot of the lots of plaintiffs arbitrarily, 0.711b cents, without regard to benefits. That the total cost assessed on the abutting property included the cost of other .improvements made by the village years before and not contemplated or provided for by the proceedings in this case, there being about $2,237-34 so illegally assessed on the abutting property and that for this reason also the assessment on their property should be enjoined.

The question which now arises is, whether the court has the right under this state of fact to allow this amended and supplemental petition to be filed, and if so, should it be granted, and on what terms? There can be no question, we think, but that the court has the right when a case comes to it on appeal, to allow amendments to be made to the pleadings in furtherance of justice, and where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court. Grant v. Tudlow, 8 Ohio St., 1, 32. The question in this case then, so far as regards the right of the court to allow the amendment presented, is whether it does state a new and different cause of action from that originally prosecuted.

It seems to us that the only good cause of action presented by the original petition is, that the village for the reason stated therein, viz.: that the plaintiffs’ property was already provided with local drainage, and did not need other drainage, and that the village was about to incur a very great expense in the construction of the new sewer and was about to assess the cost thereof upon the abutting properly, including that ot the plaintiffs, and that so far as the plaintiffs’ property was concerned they ought to be restrained from doing so, for the reason that under the provisions of Sec. 2380, Rev. Stat., it had no right under these circumstances to make any assessment on such lots so provided with local drainage. It would seem that on no other ground stated in the original petition would the plaintiffs have been entitled to relief for if the village authorities act in good faith, they have authority to construct a general system of sewerage, and in doing so, destroy or change existing ones ; but if they do this, and the old .system afforded to any one local drainage from his premises, then such premises can not be assessed for the cost of the new system.

The question does arise, whether the plaintiffs under the allegations of their petition, had a good cause of action to enjoin the levy of an assessment on their property for the cost thereof (as was evidently contemplated by the village authorities as shown by their proceedings and ordinance), or whether they must wait until the assessment is levied and seek to enjoin that.

With some doubt, we have reached the conclusion that they had a right to seek to enjoin the levy of the assessment, and if the facts disclosed warram it, to have an injunction, and would not be required to wait until it was actually levied and then seek to get rid of it. Indeed, for some reasons it would seem fairer to the village to adopt this course, and thus have the question raised as to the rights of the village to assess certain property before the expense is incurred.

If, then, the plaintiffs had the right to seek to enjoin the assessment, as was done, and during the pendency of the suit the village proceeded to do the work, and then assessed part of the cost on lots of the plaintiffs which for the reason before assigned, were not subject to assessment therefor, have the plaintiffs the right in the original action, by way of supplemental petition, to set up such facts and seek to enjoin the collection thereof ? We think this may properly be done. Section 5119, Rev. Stat., provides that “Either party may be allowed on such terms as to costs, as the court or a judge thereof may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case which occur subsequent to the filing of the former petition, answer or reply.”

That is sought to be done in this case, by alleging the doing of the work and the subsequent illegal assessment (as is claimed), on plaintiffs’ property. That, it seems to us, is not the setting up of a'new or different cause of action, but only facts which it is claimed entitle them to other and different relief.

Nor do the additional reasons set up in this pleading why the assessment or some part of it is invalid which plaintiffs seek to file, make a new cause of action, but it only avers facts as to the same transaction which give the plaintiff’s, as they claim, the right to the same kind of relief as to the matter complained of. We therefore have come to the conclusion to allow this supplemental pleading to be filed. Whether plaintiffs should be taxed with any part of the costs, as a condition thereto, will hereafter be decided, at the final hearing.  