
    B. & O. R. R. Co. and the C. O. R. R. Co. v. City of Bellaire.
    
      Assessments — Action by municipal corporation to enforce payment— Section $289 jRevtsed Statutes — Authority of court to determine amount and award judgment — Issue triable by couit and not appealable, when.
    
    Where it is shown by the petition in an action by a municipal corporation to enforce payment of an assessment for a street improvement, that the assessment by the council had been made upon lands which had not been platted or subdivided into lots, and the court is called upon, under authority of section 2289, Revised Statutes, to find and determine the proper amount of the assessment, and award judgment therefor, and order sale of such portion of the lands as may be found properly chargeable, the issue is one triable by the court and not by a jury ; and such case is appealable.
    (Decided May 9, 1899.)
    Error to the Circuit Court of Belmont county.
    The City of Bellaire brought action against the Baltimore & Ohio Railroad Company, The Central Ohio Railroad Company, and The Cleveland, Lorain & Wheeling Railroad Company, to enforce against the two companies first named, payment of certain assessments for street improvements, amounting with penalty, to the sum of $602.09. The petition, among other averments, alleged the ownership by the Central Ohio Company of certain tracts of land within the city limits; the occupancy of the same by the Baltimore & Ohio Company as lessee; the passage by the council, and due publication, of a resolution to improve Central avenue on which the lands abutted; the passage and due publication of an ordinance for the construction of the improvement, providing that the expense should be assessed per foot front upon the property abutting, payable in ten annual installments; the due construction of the work; the passage' and publication of an assessing ordinance, imposing the assessments upon the lands described; the neglect of the two companies to pay any part of the assessments, and that the plaintiff, after the assessment ordinance was in full force, had caused the assessment to be duly certified to the auditor of the county and the same to be placed upon the tax duplicate.
    The petition further averred that “there was technical irregularity and defect in the proceedings of the said council, in this, that the land not being subdivided and platted, but being then and there ‘land in bulk,’ the said council did not fix the depth of said land so that it would be a fair average depth of the lots in the neighborhood which should be subjected to such assessment; but plaintiff says that the amounts so assessed were no more than would have been assessable, and properly assessable, had such been done; that the amounts so assessed upon the said property is the just proportion of the said cost; that the true value of the improvement bounding and abutting the said lands was the amount fixed in the said assessment; and constitute the proper share and portion of the defendants of and in the cost and expense of said improvement, and constitute the amounts properly chargeable against them and their said property. ’ ’
    As to the Cleveland, Lorain & Wheeling Company it was averred, that it has or claims rights in one of the tracts of land described, and asks that the same be set forth, etc.
    Judgment was asked against the other companies for $602.09, with interest, and that the same be declared a lien on the premises, or such portion as may be found properly chargeable under the law; that the lien may,“be foreclosed and the amount due the plaintiff found, and that in default of payment, the premises or the portion which may be found properly chargeable with the lien may be sold and the proceeds applied to the claim and costs, and for further relief as to the court may seem just.
    The Cleveland, Lorain & Wheeling Company did not answer. Issue was taken by the other two companies. Trial was had to the court, a jury not being desired by either party. The court found' for the plaintiff, and entered judgment, and decree of sale, in its favor. From this the Central Ohio Company appealed. In the circuit court the company’s motion for judgment on the pleadings was overruled, and, on motion of the plaintiff, the appeal was dismissed for want of jurisdiction. The plaintiffs ask a reversal of the judgment of the circuit court.
    
      J. TI. Gollins, for plaintiffs in error.
    It will be seen that The Central Ohio Company was sued as the owner and the Baltimore & Ohio Company as lessee.
    It is true a judgment was asked against both, but it is clear that it was not entitled to a judgment against the Baltimore & Ohio and none was rendered against it. The decree ordered a sale of land which it was possessed of as lessee and a judgment and decree against the Central Ohio. That is, the court finds the amount due on the assessment and orders the land sold for the payment of that amount and costs.
    
      The prayer is for a judgment hut also for an order of sale and for such other relief as the court shall deem .just.
    This suit was not prosecuted under section 2286, but under section 2289, which provides for a proceeding which is purely equitable. That is, it authorizes the court to make the assessment when it was not properly done by the council. Springer v. Avondale, 35 Ohio St., 620; Cincinnati v. Oliver, 31 Ohio St., 371.
    Besides this, the Central Ohio sets up several defenses which are purely equitable and would have entitled it to an injunction against the collection of the assessment had it commenced the suit instead of the city.
    Besides this, the Cleveland, Lorain & Wheeling Railroad Company is made a defendant and equitable relief is prayed against it.
    So that the petition and supplemental petition were equitable in their nature and so was the prayer for relief and the remedy against The Baltimore & Ohio as claimed in the petition and as granted by the court was entirely equitable and The Central Ohio set up several equitable defenses, and it is submitted that the appeal should have been sustained upon any and certainly upon all these grounds considered together.
    It should be noted that this petition in error is Eled by The Baltimore & Ohio Company and The Central Ohio Railroad Company, as reorganized; and while it is true that the appeal in this case was taken by The Central Ohio Railroad Company, as reorganized, alone, yet that appeal carried the whole case into the circuit court, and The Baltimore & Ohio Railroad Company was there as well as The Central Ohio Company.
    
      Section 5225, Revised Statutes required the case to be tried upon the same pleadings, and of course that could not be done unless The Baltimore and Ohio Railroad Company was in court, the claim against it and The Central Ohio' Company being joint. Bank v. Walters, 1 Ohio St., 201; Brown v. Kuhn, 40 Ohio St., 468; Harpold v. Stobart, 46 Ohio St., 397.
    If The Baltimore & Ohio Company was prejudiced by the dismissal of the appeal, it, as well as The Central Ohio Company has the right to insist upon a reversal.
    That it was prejudiced by this judgment is entirely clear, because land which it occupied was ordered to be sold for the payment of the amount found due upon this assessment; and while a personal judgment was asked against it, it is entirely clear that under the statute it was not liable to any personal judgment,' because it is shown by the pleadings, as well as the finding of the court, that it was never, at any time, the owner of the property upon which the assessment was made. Corry v. Gainor, 21 Ohio St., 277; Admr. v. Hewett, 7 O. C. C., 5; 3 Circ. Dec., 635.
    But this action as shown by the statement was in its nature equitable and equitable relief was claimed against The Baltimore & Ohio Company, The Cleveland, Lorain & Wheeling Company, and it is submitted also against The Central Ohio, and •several equitable issues were made by the subsequent pleadings.
    Besides this, this record does not show that The Central Ohio Company was the owner of this property at the time of the assessment. The averments of the petition are that it was such owner. The Central Ohio admits that it is the owner, and The Baltimore and Ohio admits that The Central Ohio is the owner, but denies all else, and the special finding is that The Central Ohio is the owner. The failure to find that it was the owner at the time of the assessment is equivalent to a finding that it was not such owner.
    There is no presumption that evidence was offered tending to prove that The Central Ohio was the owner at the time of the assessment. Springer v. Avondale, 35 Ohio St., 620.
    Pacts not found are taken as not proven by the party holding the affirmative.
    
      Hunter S. Awn-strong, for defendant in error.
    Even if the pleader intended to deny that the said company “was” the owner and admit that it “is” the owner, the language used would not be sufficient', for the allegation is that “this defendant has no knowledge, and it therefore denies,” etc. Now, if it was the owner at the time of the assessment, it knew it was, and it had knowledge of that fact. If it was not the owner at the time of the assessment it knew it was not, and it had knowledge of that fact. The obligation to verify pleadings carries with it the obligation to state the truth in them, and we are not to presume that the officer of the said company made a false statement in the pleading, as we must presume if we assume that the denial of knowledge of “the other averments” was meant for a denial that the said company “was” the owner of said property at the time of the assessment.
    Furthermore, the permission to deny any knowledge is not absolute. If the fact charged is evidently within the knowledge of the defendant, or where be has the means of information, a denial of information would be clearly false and evasive, and such an answer should be disregarded. Bliss on Code Pleading, section 326.
    But, in any event, the petition alleges that it was, and the allegations of the petition in this particular alone determines this question. We claim that the question of title at that time was admitted by the pleadings to be as alleged in the petition, but in any event, the allegation of the petition in this particular alone determines the question as to whether there was an appeal. • If title was admitted, then the court was not required to make a finding as to title.
    If ownership at the time of the assessment is not admitted in the pleadings, it is at least averred in the petition, and the fact that the court failed to make a finding of fact as to the ownership at the time of the assessment does not convert the cause into a purely equitable one. That error, if it be one, could only be taken advantage of on error, and not by appeal. If it was a jury case when the suit commenced, it continued to be a jury ease. The suit was one in which a jury might have been had. It is, therefore,' not appealable. If, in order to enter a binding judgment, it was necessary to find that the said company “was” and not merely “is,” then that was an error, and could be corrected only by petition in error. Even if the railroad company had denied that it was the owner of the property at the time of the assessment, this court would be bound to presume that the allegation of the petition was sustained by evidence or a personal judgment would not have been entered.
    
      No judgment or decree was entered against the Baltimore and Ohio Railroad Company, but the judgment was rendered against the Central Ohio, and the latter company took an appeal. Two causes of action were stated in the petition. No objection was made to thfe joining of these two causes of action. That such eases are not appealable is well settled. Brumbridge v. Goodlove, 30 Ohio St., 374; Chapman v. Lee, 45 Ohio St., 356; Corry v. Gaynor, 21 Ohio St., 277; Ladd v. James, 10 Ohio St., 437; 13 Ohio St., 574; 7 Ohio St., 233; 15 Ohio St., 460; Huber v. Cherrys' Exrs., 17 Ohio St., 562.
   Spear, J.

Did the circuit court err in dismissing the appeal? We think it did.

The case made in the petition is not an action for the recovery of money only, within the meaning of section 5130, Revised Statutes. The land upon which assessments were to be charged had never been platted or subdivided into lots, but was “land in bulk.” It was, therefore, the duty of the council, in making an assessment, to fix the depth of the land so that it would be a fair average depth of the lots in the neighborhood which should be subject to such assessment. This duty the petition shows that the council wholly neglected. That body undertook to make an assessment, but failed to make a legal one. Hence no valid assessment existed at the commencement of the action, and no judgment could properly be demanded until the court, acting under the authority given by section 2289, Revised Statutes, had heard proof, and itself supplied the omission of the council in this respect. In other words, the court was asked to correct the proceedings by acertaini'ng and finding what amount should be equitably charged against the land, and then, a proper assessment being made, to award judgment and order of sale.

This presented an issue which, under section 5131, Revised Statutes, was triablepby the court.

The judgment of the circuit court dismissing the appeal will be reversed and the cause remanded to that court for further proceedings according to law.

Reversed.  