Green v. Tidball

• Decision Date: 23 November 1901
• Citation: 26 Wash. 338,67 P. 84
• Court: Washington Supreme Court
• Parties: GREEN et ux. v. TIDBALL et ux.

67 P. 84

26 Wash. 338

GREEN et ux. v. TIDBALL et ux.

Supreme Court of Washington

November 23, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Samuel K. Green and wife against James G. Tidball and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

R. E. Porterfield, for appellants.

Stern Hamblen & Lund, for respondents.

FULLERTON J.

On July 15, 1889, the appellants conveyed to the respondent Phebe B Green lot 8, in block 16, in the city of Spokane, covenanting that the property was free from all incumbrances. Prior to that time the city of Spokane had caused Stevens street therein to be graded and otherwise improved, had created an assessment district in which they included the property above described, and had caused an assessment to be levied upon the property within the assessment district to meet the cost of the improvement. The amount levied against the property of appellants was $23.10, which the appellants paid, with interest, shortly after the execution and delivery of the deed. Thereafter, and before any considerable part of the assessment levied upon the district had been collected, this court decided a similar assessment attempted to be enforced by the city for the improvement of another street therein to be void because in contravention of the city charter, the effect of which was to render the assessment for the improvement of Stevens street uncollectible. In 1893 the legislature passed the act relating to reassessments (Laws 1893, p. 226; Ballinger's Ann. Codes & St. § 1139 et seq.). Following this, the city amended its charter providing for a reassessment of property where the first assessment should be adjudged illegal, and caused a reassessment of the property within the Stevens street district to be made, in which reassessment the amount levied against the property conveyed to the respondents was increased to an amount which, after deducting the sum paid on the illegal assessment, left a balance of $218.62. This sum the respondents paid to the city, and brought this action upon the covenant against incumbrances contained in the deed to recover from the appellants the amount so paid. On the trial of the cause, at the conclusion of respondents' case, the appellants challenged the sufficiency of the evidence to sustain a verdict against them, which the trial judge refused to sustain, whereupon they rested without offering any evidence in their own behalf. The court, on motion of the respondents, then instructed a verdict in their favor. This appeal is from the judgment entered thereon.

It is assigned as error that the trial court overruled a general demurrer to the complaint. It is said that the complaint fails to allege that the city of Spokane is a municipal corporation having authority to grade streets and assess the costs thereof to abutting property owners; that the ordinances relied upon to establish the lien, and the several steps taken by the municipal officers in making the levy, are not sufficiently alleged. As to the first of these objections, it is sufficient to say that the statute authorizes and requires the courts to take judicial notice of the incorporation of municipalities of the first class, and of their charters, and all amendments thereto. As to the second, the ordinances are set forth by number and date of passage, and their substance and effect are stated, and it is alleged that the officers, acting in pursuance thereof and of the city charter, duly caused to be levied the assessment complained of. This, while it might have been susceptible to a motion to make more definite and certain, is good as against a general demurrer. It is not a failure to state a cause of action, but at most a defective statement of a cause of action. This court has repeatedly said, and it is well to say again, that it will not reverse a judgment for this cause alone. The statute directs us to disregard any error or defect which does not affect a substantial right of the adverse party (Ballinger's Ann. Codes & St. § 4957), and to determine all causes upon the merits thereof, disregardingall technicalities, and to consider all amendments which could have been made as made (section 6535). When, therefore, a cause has been tried upon its merits, as if upon pleadings sufficient in form and substance, in which the complaining party has not been misled, and has had full opportunity to present his case, some substantial wrong, some failure on the part of his adversary to aver or prove a material matter necessary on his part to be averred and proven in order to entitle him to recover, must be shown, before this court is warranted in reversing and remanding a cause for a new trial. A mere defect in pleading is not such a cause. It must not only be defective, but must have operated to the substantial injury of the complainant, before that result can follow. No such injury is shown by this branch of the appellants' case.

The principal question is, was this right that the city had to levy an assessment upon the property to pay the cost of the improvement made in the street an incumbrance on the property within the meaning of that term as used in the deed? The appellants contend that it was not, because it had not attached at that time; that it was then but an inchoate right, which might or might not thereafter become fixed...