City of Seattle v. De Wolfe

• Decision Date: 10 July 1897
• Citation: 49 P. 553,17 Wash. 349
• Parties: CITY OF SEATTLE v. DE WOLFE ET AL.
• Court: Washington Supreme Court

49 P. 553

17 Wash. 349

CITY OF SEATTLE v. DE WOLFE ET AL.

Supreme Court of Washington

July 10, 1897

Appeal from superior court, King county; J. W. Langley, Judge.

Action by the city of Seattle against Fred S. De Wolfe and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

John W Pratt, C. A. Riddle, and John K. Brown, for appellant.

R. B Albertson, Bausman, Kelleher & Emory, and Struve, Allen Hughes & McMicken, for respondents.

SCOTT C.J.

This was an action to foreclose a lien for a street assessment. The assessment had been levied under section 10 of the 1886 charter of the city of Seattle (Laws 1885-86, p. 243), and became delinquent on the 11th day of August, 1889. A demurrer was interposed to the complaint, on the ground that the cause of action was barred by the statute of limitations, which was sustained by the court, and judgment rendered for the defendants. The city has appealed.

There was no allegation in the complaint that any steps had been taken to enforce the assessment prior to the commencement of this action, in October last. The appellant first questions the holding of this court in Spokane v Stevens, 12 Wash. 667, 42 P. 123, that the two-years statute of limitations applied in such cases. We have had occasion to re-examine that decision prior to this action, in Bowman v. City of Colfax (recently decided) 49 P. 551, and have reaffirmed it, and are convinced of its soundness. The appellant further contends that the act of March 20, 1895 (Laws 1895, p. 270), prescribing a ten-years limitation as to such actions, had the effect of reviving this cause of action, conceding that the two-years statute did apply theretofore. We are of the opinion that it was the intention of the legislature to make that act apply to existing causes of action, and that it would apply to and continue all those where the bar of the former statute had not become complete, but that it was beyond the power of the legislature to revive such a cause of action as this, where the bar was complete. Packscher v. Fuller, 6 Wash. 534, 33 P. 875, and authorities cited; Cooley, Const. Lim. (5th Ed.) p. 449; Busw. Lim. § 14. Nor do we think the case of Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, is against that proposition as applied to these actions, if that case were to be followed, as that only applied to ordinary personal actions.

In this connection the appellant also contends that the city had a right to enforce this assessment by a personal action, in consequence of a provision in said section that "such assessments may be collected and such liens may be enforced by actions at law or suit in equity, either in the name of the city of Seattle or of the officer or any contractor or contractors," etc., and that the two-years limitation statute should, at most, only be held to apply to the personal action. But that section contains the further provision that "in any such action or suit, if it shall appear to the court on the trial thereof that the work has been done or material furnished in making improvements authorized by the council, for which under...