Raisch v. Hildebrandt

McFARLAND, J.

This is an action to foreclose the lien of a street assessment. The complaint contains all the averments necessary to a complete cause of action on the lien, and, among other things, averments of the making and recording of the assessment, warrant, diagram, certificate of city engineer, demand of payment, non-payment, return of the warrant, etc., which, by the terms of the statute, are

“prima, facie

evidence of the regularity and correctness of the assessment and of the prior proceedings and acts of the superintendent of streets and city' council upon which said warrant, assessment, and diagram, are based, and like evidence of the right of the plaintiff to recover in the action.” These averments as to the assessment, warrant, diagram, certificate, etc., were not denied in'the answer, although the answer does contain denials

[722]

of preceding averments in the complaint,—as, for instance, that the resolution of intention to do the alleged work was duly or at all passed by the board of supervisors, that the clerk printed for the required time a notice of the nature and character of the work to be done, inviting sealed proposals for doing the same, that the board opened the bids or awarded any contracts for the work, that plaintiff was the lowest bidder, that the superintendent entered into any contract with plaintiff to do the work, etc. At the trial plaintiff rested his ease without introducing any evidence, upon the theory that as his said averments of the making and recording of the assessment, diagram, etc., and the return and recording of the warrant were not denied in the answer, and must be taken to be true, therefore those averments made a

prima facie

case for plaintiff. Thereupon the; defendants moved for a non-suit upon the ground that plaintiff had failed to introduce any evidence tending to prove those allegations of the complaint which are denied in the answer. The court granted the motion for a nonsuit, and rendered judgment for defendant. From this judgment plaintiff appeals.

We thihk that the court erred in granting the nonsuit. It was evidently granted upon the theory that the admission in the answer of alleged facts, which under the statute constituted a