Gray v. Lucas

Street Assessment—Defeat of Prior Foreclosure—Right to Second Assessment — Judgment Must Show Statutory Defects. — Under section 9 of the street improvement act the right to a second assessment, upon defeat of a prior action of foreclosure, does not exist unless it appears by the final judgment in such action that it was defeated by reason of some infirmity in the assessment, or in the recording thereof, or in the return thereof, and the facts upon which the judgment was based must show the grounds upon which the suit was defeated; and if it was defeated by reason of a defect or infirmity in any other step taken in the proceedings than those specified in the statute, or by reason of a lack of evidence, or failure to prove any other fact essential to a recovery, the statute giving a right to a second assessment does not apply.

Id.—Certificate of Engineer not Part of Assessment—Exclusion of Evidence—Remedy by Appeal.—The statute does not make the certificate of the town or city engineer, from which the superintendent is to ascertain the amount for which the assessment is to be made, any part of the assessment, and though it requires the certificate to be recorded, and makes the warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, prima facie evidence of the regularity and correctness of the assessment, yet it does not require the certificate to be attached to the other instruments, or that it accompany them when they are offered in evidence, nor does its absence from among them constitute a defect in the assessment; and an erroneous ruling excluding the assessment from evidence, on the ground that the certificate of the engineer was not attached thereto, is an error to be corrected by appeal, and cannot form the basis of a right to a second assessment.

Id.—Nonsuit—Admission of Pleading as to Certificate—Notice to Amend Judgment — Sufficient Basis for Second Assessment.— Where a judgment of nonsuit was granted in an action to foreclose the lien of a street assessment, for the reason that the assessment offered in evidence had been excluded because not accompanied by the certificate of the city engineer, and the answer admitted the allegation of the complaint that the certificate was duly recorded, and was delivered to the plaintiff’s assignor after it had been recorded, the failure of the plaintiff to produce evidence within his control necessary to make a prima facie case, must be held to be the reason why the suit was defeated, and not any infirmity in the assessment; and a motion to amend the judgment so as to have it set forth that the nonsuit was ordered on the alleged ground that the assessment offered in evidence on behalf of plaintiffs was defective and irregular, and did not comply with the statutory requisite in that behalf, in that the certificate of the town engineer was not attached thereto, so as to have the judgment disclose a right to a second assessment, is properly denied.