Westall v. Altschul

TEMPLE, J.

—Action to foreclose a street assessment lien. Altschul, who was the owner of the lot, appeals from a judgment against him and from an order refusing a new trial.

James Ryan, the assignor of plaintiff, and the contractor, brought suit upon a prior assessment, in which he recovered judgment, from which and from an order denying a new trial Altschul appealed, and in this court the judgment and order were reversed and a new trial ordered. A new assessment having been made, plaintiff, as assignee of Ryan, brought this action, in which he recovered judgment, from which and from an •order refusing a new trial this appeal was taken.

Several points are made, but two of which it will be necessary to notice, and they may be considered together. After the

remittitur

was received and filed in the case of

Ryan v. Altschul

no new trial was had, but that case was finally dismissed on motion of the plaintiff. Before such dismissal, however, the new assessment was made, and this action, to foreclose the lien was •commenced. It is now contended that no new assessment could be made until after final judgment had, been entered in the suit upon the first assessment, and, further, to justify a new assessment it must affirmatively appear from the judgment-roll that such action was defeated by reason of some defect, error, informality, omission, irregularity, or illegality in the assessment. {Stats. 1889, p. 167.) The statute reads: “Whenever it shall appear by any final judgment of any court of this state that any •suit brought to foreclose the lien,” et cetera, has been defeated by reason of such defects, “any person interested therein may, •at any time within three months after the entry of said final judgment, apply to the superintendent of streets” for another assessment. It is certainly a very crude and, so far as I can see, a very unwise law. It would not necessarily appear by a final judgment that the suit was defeated on that ground rather than ■on some other objection made by defendant, and why, after the assessment had been finally adjudged void, should the plaintiff be required to prosecute his action to an inevitable .judgment against himself before he is entitled to a new assessment? And

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