City of Spokane Falls v. Browne

• Decision Date: 12 November 1891
• Parties: CITY OF SPOKANE FALLS v. BROWNE ET UX.
• Court: Washington Supreme Court

27 P. 1077

3 Wash. 84

CITY OF SPOKANE FALLS v. BROWNE ET UX.

Supreme Court of Washington

November 12, 1891

Appeal from superior court, Spokane county; R. B. BLAKE, Judge.

Action by city of Spokane Falls, Wash., against J. J. Browne and Anna W. Browne to enforce the collection of a local assessment. Judgment for defendants. Plaintiff appeals. Affirmed.

H. E. Houghton, Corp. Counsel, and Jones, Belt & Quinn, for appellant.

Jones & Voorhees, for respondents.

ON MOTION TO DISMISS.

ANDERS C.J.

Respondents move the court to dismiss this appeal for the alleged reasons that the notice of appeal was not given within the time prescribed by law; that the statement of facts is not certified, as required by law; that the notice, or pretended notice, of appeal was never legally served; and that no transcript has been prepared and filed in this court, as required by law. The argument of counsel for respondents upon the motion was mainly directed to the objection that the notice of appeal was not filed or served in time. It is claimed by counsel that the appeal was taken by giving notice thereof in open court on the 5th day of January, 1891, and that, having abandoned that appeal, appellant could not appeal again by subsequently giving written notice. It appears from an examination of the record that on the day above mentioned the judge who tried the cause announced in open court that he found for the defendant, whereupon counsel for plaintiff, no doubt thinking that judgment in the cause had been rendered by the court, gave notice of appeal to the supreme court. The fact is, however, that the court did not render judgment on said day, but on the 2d day of February, 1891, at which time the court filed its findings of fact and conclusions of law, and ordered the action dismissed at the cost of plaintiff. There being no judgment to appeal from, the first notice of appeal was treated by appellant as a nullity; and we do not think that by so doing appellant should be deprived of the right to appeal from the judgment by which it claims to have been injured. To hold that a party is estopped, by giving a premature and ineffectual notice, from thereafter prosecuting his appeal would be to deprive him of a legal right upon a mere technicality, unsupported by reason, and contrary to the spirit and policy of the law. We cannot assent to such a doctrine, and therefore hold that the written notice of appeal was properly given, if not barred by lapse of time. This second notice was served on July 25, 1891, but was not filed in the office of the clerk until August 3, 1891. As the six-months limitation expired on the 2d day of August counsel for respondents insists that the filing of the notice was one day too late. That would be true, under ordinary circumstances, but in this instance the last day of the time limited fell upon Sunday, and, according to the rule of computation prescribed by the legislature, that day must be excluded. See Code Wash. § 743. The notice was therefore served and filed in time. The remaining objections to the statement of facts are not well taken. The certificate to the statement of facts is sufficient, and the amended proof of service of the notice of appeal shows that it was not served on Sunday, as claimed by respondents. The motion to strike the statement is denied.

ON THE MERITS.

This was an action to enforce the collection of a local assessment charged upon the property of respondents for grading Second street in the city of Spokane Falls. The court below rendered judgment in favor of defendants dismissing the action, and for costs, from which the city appealed, and the cause is now here for review. Among other allegations of the complaint, not necessary to be stated, are the following: " Second. That between the 29th day of May, 1888, and the 14th day of September, 1888, by virtue and in pursuance of the following ordinance of the said city, plaintiff, to-wit, ordinance No. 155, entitled 'An ordinance to provide for the grading of Second street between the east line of Washington street and the west line of Chestnut street,' passed by the city council of said city May 29, 1888; and an ordinance No. 33, entitled 'An ordinance prescribing the mode of making and collecting assessments for street improvements,' passed by the city council of said city July 7, 1886; and an ordinance amending said ordinance number 33, and numbered ordinance No. 83, entitled 'An ordinance to amend section 2 of an ordinance entitled "An ordinance prescribing the mode of making and collecting assessments for street improvements,"' passed by the city council, and approved July 7, 1886, which said ordinance was passed by the city council of said city September 28, 1887, and approved the same day,-plaintiff did improve and grade said Second street between the limits aforesaid." " Fifth. That by virtue of and in accordance with the provisions of said above-mentioned ordinances the above-described real estate was duly assessed as the property of defendant J. J. Browne." " Seventh. That the sum of eight hundred and twenty-two and twenty-five one-hundredths dollars is a proper proportion of the value of such improvements and grading, and the material furnished thereon, which is chargeable on said real estate according to the true intent and meaning of the provisions of the charter of said relating to grading and improvements of streets and making special assessments therefor." The answer of defendants denies that by virtue of the ordinances mentioned in the complaint, or any of them, the said described lots or parcels of land, or any of them, were ever duly or legally assessed as the property of defendants or either of them; or that ordinance No. 155, or any other ordinance, providing for the said grading of Second street, was ever duly or legally passed by the city council of said city, or was ever duly or legally approved by the mayor of said city. But the defendants allege that said ordinances No. 33 and No. 83 are the only ordinances or authority under or by which the pretended assessment of the lots or parcels of land mentioned in the complaint was made, and aver that said ordinance No. 83 is in conflict with the provisions of the charter of the city, and is therefore invalid, void, and without authority of law. The defendants further allege, in substance, that in making the pretended assessment the assessor wrongfully and unlawfully undertook to assess, include, and extend upon his assessment rolls the value of improvements upon said lots of land; that the acts of said assessor in making said assessment and extending the same upon the assessment roll were invalid, and without the authority of law; and that the said pretended assessment of land in said assessment district was unequal, and that the lots mentioned in the complaint were assessed greatly in excess of the benefits of said land, and in excess of other tracts of land in said assessment district.

It will thus be seen that the defense to the action relied on in the lower court was the alleged...