City Street Improvement Co. v. Emmons

SMITH, C.

This is a suit for the foreclosure of a street assessment. It appears from the allegations of the complaint that the warrant, with assessment and diagram attached, was delivered to the contractor August 14, 1897, and that it was not returned until September 14, 1897, being one day over thirty days from the date of delivery. On this ground the defendants’ demurrer was sustained; and thereupon, on motion of the plaintiff’s attorney,—defendants’ attorney not being present,—judgment was entered for the defendants, in which, among other things, it was adjudged, in effect, “that the return of the said assessment was and still is defective, erroneous, and illegal,” and “that by reason of said defect, error, and illegality, the demurrer ... to the complaint.. . . be and the same is hereby sustained,” etc. But by a subsequent order of the court, on motion of defendants’ attorney, the judgment was set aside. The appeal is from this order, and it is urged as grounds for reversal,—1. That the judgment was in fact right; and 2. That, if not, the court was nevertheless not authorized to set it aside.

The sufficiency or insufficiency of the former ground turns upon the construction of certain provisions of sections 9 and 10 of the Street Improvement Act. In the latter section it is provided that “the warrant shall be returned to the superintendent of streets within thirty days after its date, with a return indorsed thereon, signed by the contractor or his assigns, or some person in his or their behalf, verified upon oath, stating the nature and character of the demand, and whether any of the assessments remain unpaid in whole or in part, and the amount thereof”; and that in ease of failure upon the part of the contractor “to return his warrant within the time and in the form provided in this section, he shall thenceforth have no lien upon the property assessed.” But in section 9 (Stats. 1891, p. 205) it is provided, in effect, that whenever in a suit to foreclose a street assessment lien it shall appear by the final judgment that the suit “has been defeated by

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reason of any defect, error, informality, omission, irregularity, or illegality in any assessment, ... or in the recording' thereof, or

in the return thereof, made to or recorded by the said superintendent of streets,