
    Case 77 — PETITION EQUITY
    May 10.
    City of Louisville v. Hexagon Tile Walk Co., Etc.
    APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.
    1. Revival of Actions. — A suit to enforce a lien upon real property-should 'be revived upon the death of the defendant, against the heirs, or devisees, of the defendant, and not against his personal 'representative.
    2. Street Improvements — Liability of City. — A city can not be held responsible, for the cost of improving a' street which wasi properly assessable against the abutting property until the question as to whether the abutting property is liable to- the assessment has been litigated.
    H. L. STONE FOR APPELLANT.
    I. The allegation of the petition that the city guaranteed the work should he paid off by the property owners, and that it would see that the same, was paid, is in conflict with the provisions of the contract sued on; and where there is such conflict between the) allegations of the pleading and .the exhibit sued on, the provisions of the latter must prevail. Dodd v. King, 1 (Met., 430; Haney v. Tempest, 3 Met., 98.
    2. The ordinance under which ■, this improvement was made was adopted June 7, 1892, and provided that the work shall be done at tbe cost of the owners of the ground fronting the improvement, as provided in the act of the 24th of March, 1882, amending the charter of the city of Louisville. City of Louisville v. Nevin, 16 Ky. Law Rep., 438.
    H. S. BARKER of counsel on same side.
    LANE & BURNETT for fidelity trust & safety vault co.
    I. The real estate described in the petition and sought to be subjected! on the death of Henrietta Pope passed to, and vested in, hen devisees, or heirs at law, and t!he action should’ have been revived! againsit them and not against her executor. Ball v. First National Bank, 80 Ky., 504.
    
      PHELPS & THTJM for the hexagon tile walk co. and jackson LOAN & INVESTMENT CO.
    1. The city of- Louisville never filed any answer or. pleading, and; permitted judgment to go against it by default and saved no exception; under these circumstances the appeal can not be considered, and this court has no jurisdiction of it.
    2. Whenever the city makes a contract for street improvements, and' issues to the contractor warrants to pay therefor, if the warrants are for any reason unenforcible as to the property, or as to the property owners, t!he city itself is liable as principal’ obligor, if the defect Is not of such character as to invalidate the contract . as between the city and the contractor; (City of Louisville v. Hyatt, 5 B. M.,'204; Guthrie v. City of Louisville, 6 B. M., 575; Kearney v. City of Covington, 1st Met., 339.) And these decisions were had under provisions of charters identical with the charter of the city of Louisville in force when tlhe contract in question, was entered into. Murphy v. City of Louisville,’ 9 Bush, 190; Craycraft v. Selvage, 10 Bush, 696; Caldwell v. Rupert, 10 Bush,, 179; Guthrie v. City, 6 B. M., 575; Nevin v. City, 10 Bush, 549.
   JUDGE DuRiELLE

delivered the opinion of the court.

This suit was brought by appellee, Hexagon Tile Walk Co., against Mrs. Henrietta Pope, wife of H. Pope,,and the City of Louisville on an apportionment • warrant issued against Mrs. Henrietta Pope for improvement of a sidewalk on Fourth avenue. Mrs. Pope'having died before process was executed, an order of revivor was made against the Fidelity Trust & Safety Vault Co.’as her executor. A demurrer by the executor was sustained, and properly, as the suit was a proceeding to enforce a lien upon real property, and the heirs or devisees of Mrs. Pope, if she was the owner of the property, should have been made parties defendant, the title passing to them at her death, and not to, the executor. ■- •.

Judgment was rendered for the amount of .the apportionment warrant against the city of Louisvile, which had interposed no defense. The city subsequently sued out an appeal in the clerk’s office of this court, and the Hexagon Tile Walk Co. prayed a cross appeal against the trust company. It is claimed on behalf of the city, that it could not be held liable on the apportionment warrant without the right to enforce a lien for the improvement against the property. But counsel for the city is in error in supposing that the provision of the charter upon which he relies was in force at the date of the contract under which this apportionment warrant was issued. By the act of March 24, 1882 (Acts of 1881, volume 1, page 991), amending the city charter of 1870 (Burnett’s Code, page 504), it was provided that: “In no event if such improvement is made as is provided, either by ordinance or contract, shall the city be liable for such improvement without the right to enforce it against the property receiving the benefit thereof.”

The act referred to appears to be a codification of the law in regard to the improvement of streets in the city of Louisville, but by the act of April 1, 1880, (Acts of 1885-86, volume 1, page 1153), the words above quoted were repealed, and appear not to have been re-enacted until they were embodied in the present act for the government of cities of the first class adopted in June, 1893. But it was never intended that the city should be held responsible for the cost of improving a street which was properly assessable against the abutting property without any litigation of the question whether such property was subject to a lien for the improvement. That question has not, and could not, have been litigated in this case, for the owner of the property has never been made a party defendant. The proceeding being in rem against the property, it' was essential that the property owner should be made a party, either by .actual or constructive process. The liability of the lot for this assessment has never been litigated. In fact, it was not even averred in the petition that Mrs. Pope was the •owner of the lot in question. Until that question is adjudicated in a proper proceeding the question of the city’s responsibility upon the contract does not arise.

For the reasons given the judgment is reversed upon the ■original and affirmed upon the cross appeal.  