City of New London v. Miller

• Decision Date: 03 March 1891
• Citation: 22 A. 499,60 Conn. 112
• Court: Connecticut Supreme Court
• Parties: CITY OF NEW LONDON v. MILLER et ux.

22 A. 499

60 Conn. 112

CITY OF NEW LONDON

v. MILLER et ux.

Supreme Court of Errors of Connecticut.

March 3, 1891.

Appeal from court of common pleas, New London county; Crump, Judge.

R. Wheeler and H. A. Hull, for appellant.

J. Halsey and A. Brandegee, for appellee.

ANDREWS, C.J. This action was brought against William F. Miller and Margaret Miller, his wife. The complaint, as it stood before it was amended, alleged, in substance, that the defendants were, on and before the 13th day of August, 1887, the owners of certain real estate in the city of New London abutting on Main street; that prior to said day the board of sewer commissioners of said city laid out and constructed a public sewer in and through said Main street; that on the 27th day of August, 1887, the said board, after notice and hearing to the defendants, assessed against the defendants, whose property was in the judgment of the board benefited by the sewer, the sum of $149.25 as the sum which they ought justly and equitably to pay as their proportionate share of the expense thereof; that notice of said assessment was given to the defendants, and no appeal was taken, and that it has never been paid; and that a certificate of lien was duly filed and recorded in the town-clerk's office; and the complaint claimed a judgment for the amount of the assessment and a foreclosure of the lien. A copy of the certificate of lien was annexed to a deed made part of the complaint, and is as follows: "This may certify that a lien in favor of the city of New London is claimed and continued upon the land and premises hereinafter described to secure the payment of one hundred and forty-nine and twenty-five one-hundredths dollars due said city from Wm. F. and Margaret Miller, the owners of said property, as an assessment of benefits resulting thereto from the construction of a public sewer in and along Main street, in said city, by the board of sewer commissioners thereof. Said assessment was duly made by said board on the 13th day of August, 1887, under and in compliance with the provisions of an act relating to sewers and sewerage in the city of New London, passed at the January session of the general assembly of the state, A. D. 1886; amounts to the sum of one hundred and forty-nine and twenty-five one-hundreths dollars; and was due on the 27th day of August, 1887. The parties liable to pay the same have been duly notified, and the same is unpaid, and is claimed as the amount secured by this lien, with interest from the 6th day of October, 1887. The premises upon which this lien is claimed are situated on Main street, in said city of New London, and are bounded and described as follows, namely: Northerly by land of Wm. R. and Mary P. Brown, easterly by Winthrop avenue, southerly by land of James Maux, and westerly by Main street. Dated and recorded October 26th, 1887." At the trial the plaintiff amended the complaint as follows: "Strikeout from the complaint the name of Margaret Miller, and insert the word 'defendant' instead of the word 'defendants' whenever the latter occurs in said complaint. Add to the complaint a new paragraph as follows: 'The land described in said complaint consists of four lots lying contiguous to each other, and not separated by any visible boundaries. Of three of said lots, the record title stands in the name of Margaret Miller. The record title of the remaining lot stands in the name of William and Margaret Miller. Said William and Margaret Miller are husband and wife, and were married prior to 1870. plaintiff claims only a foreclosure of the interest of William Miller in said lands.'" To the amended complaint the defendant William Miller demurred. The court overruled the demurrer, and on his failure to answer over rendered judgment against him for the full amount of the assessment, and decreed a foreclosure of his interest in the land. He appeals to this court.

If the action had been prosecuted in its original form against both...