Swamp Land Reclamation Dist. No. 341 v. Blumenberg

SHAW, J.

This is an appeal from the judgment upon the judgment-roll alone. Judgment was given for the plaintiff upon a motion for judgment on the pleadings.

The case involves the same assessment as that reviewed in the case between the same parties, which was appealed to this court, and which is designated as No. 1656 on the Sacramento calendar. We refer to the opinion in that case for a fuller statement of the facts,

ante,

p. 532. The object of the present action is to foreclose the lien of the assessment for the remaining sixty-five per cent of the amount thereof, calls for that portion having been made after the former suit for the first thirty-five per cent was begun. This action was begun in May, 1908. The only additional matter to be here considered arises from the fact that in this case it is alleged and admitted that, after the assessment-list was filed in the office of the county treasurer, an action, under section 3493% of the Political Code, was begun by the district in the superior court of the county

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against the defendants and others as owners of lands in the district subject to the assessment, to determine the validity of said assessment; that the defendants were duly served with summons in said action and that on October 11, 1907, judgment was duly given therein declaring that said assessment was legal and valid, and that it constituted a lien upon the lands of the respective owners of lands in the district, to the amounts stated in the assessment-list, and upon the lands of the defendant, Caroline, to the amount of $6053.15. This judgment had become final before this action was begun. There was no appeal therefrom. These facts were not alleged in the first action. There is a stipulation on file that whatever judgment is rendered on the appeal in No. 1656, a like judgment may be given on this appeal. Manifestly this cannot be done unless the material facts are the same in both cases. As they are substantially different, the stipulation will be disregarded.

The last clause of section 34931/2 expressly declares that every judgment declaring an assessment valid, given in such action, “shall be conclusive between the parties thereto as to the validity ... of the assessment.” This section was enacted in 1893. Prior to that time there was no proceeding authorized by which the validity of the assessment could be judicially determined in advance of a suit for the foreclosure of the lien. Because of the lack of such an opportunity to dispute its validity, it was held in