Ransome-Crummey Co. v. Thurber

STURTEVANT, J.

The plaintiff commenced an action against the defendants to foreclose a street assessment lien. The defendant had judgment and the plaintiff has appealed, bringing up the judgment-roll and a bill of exceptions.

In the year 1912 the proceeding was commenced for the improvement of the intersection of Fourteenth Street (now Seventeenth Street) and Santa Clara Street, in the city of San Jose. Thereafter such proceedings were had that a purported assessment was made and filed, and Agnes Beggs, on November 18, 1912, appealed to the common council of the city of San Jose. In her notice of appeal she set forth many grounds, and, among others, that the cost and charges for said improvement were illegally and improperly, and not proportionately divided among the lots of land liable for the assessment, and that said assessment includes lots of land not legally liable for said assessment. Thereafter, on the twenty-first day of November, 1912, F. A. Curtis also appealed to the common council, and in his notice of appeal contended that in the assessment his property was included in lot No. 14, together with other property which he did not own, but that a bill for the total charge had been presented to him. And in his notice of appeal he also joined in the appeal of Agnes Beggs. Thereafter the appeals coming on regularly for hearing, the appeal of F. A. Curtis was sustained and the superintendent of streets was directed to correct the assessment and in levying the same to treat San Fernando Street as a main or intersecting street, joining a block on the east side of Fourteenth Street. Thereafter the appeal of Agnes Beggs was denied.

The plaintiff in its amended complaint pleads a cause of action to foreclose the assessment lien levied against the property owned by the defendant Helen M. Thurber. The complaint is full, complete, and regular in every respect so far as any objection to it has been called to our attention. In her answer thereto the defendant put in issue the allegations of plaintiff’s complaint and then pleaded the order of the common council sustaining the appeal of F. A. Curtis, and directing the assessment to be corrected, and that the assessment had never been corrected, but remained as it was before said appeal. On the trial of the

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case the plaintiff introduced evidence which constituted a