Schirmer v. Hoyt

Department No. 2, Morrison, C. J.: This is an action on a street assessment. Plaintiff had judgment in the Court below; defendant moved for a new trial, which was refused; and the appeal is from both the judgment [281]and the order denying the motion for a new trial. There is but one question in the case, and that relates to the sufficiency of the demand.

It appears, from the diagram accompanying the assessment, that the lots numbered 5 and 18 were assessed, the former for $137.85, and the latter for $9.55. The return shows that a demand for an aggregate sum was made on the two lots. It is as follows:

“ N. Provo Flint, being duly sworn, deposes and says that he is the collector of Emil Schirmer, assignee of the contractor named in the annexed assessment list and warrant; that since the date of said warrant, to wit, on the 3rd day of November, 1876, and by virtue thereof, he went upon each of the lots exhibited upon the diagram attached to said assessment list and warrant, and numbered respectively 1, 2, 5, 18, etc., and while on said lot on said day, in an audible tone of voice, etc., he publicly demanded on each lot of land the payment of the sum assessed to each in said assessment list respectively. That is to say, while on lot No. 1, he demanded payment -of the sum of $137.85; No. 2, $77.20; Nos. 5 and 18, $144.94.”

The demand in this case was made upon lots 5 and 18 for one sum of money, the same being the aggregate amount of the assessments on the two lots, and was therefore insufficient. The demand should have been made on each lot for the amount assessed thereon. (Dyer v. Chase, 52 Cal. 440.)

Judgment and order reversed.

Sharpstein, J., and Thornton, J., concurred.