Kersten v. City of Milwaukee

• Decision Date: 20 March 1900
• Citation: 106 Wis. 200,81 N.W. 1103
• Parties: KERSTEN v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 200

81 N.W. 1103

KERSTEN

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

March 20, 1900.

On rehearing. For former opinion, see 81 N. W. 948.

*1103BARDEEN, J.

The principal ground relied upon in the motion for a rehearing is that plaintiff has already paid the benefits assessed against his property pending this litigation, and that, if a new assessment is made, he will have to pay twice. There is nothing in the record showing that any such payment has been made. If such should prove to be the fact, when a new assessment is made, the trial court would necessarily take it into consideration, and adjust the rights of plaintiff accordingly. It is purely a matter of administration in the court below, and can in no way be appealed to to defeat the plain mandate of the statute, which requires a reassessment. This action is virtually one to set aside a void assessment. The city had an absolute right to proceed, if it had done so according to law. It being shown that it did not do so, the statute leaves but one course open to the court, and that is to order a reassessment, as the charter requires; and that is the only relief that can or should be granted in this action. When such reassessment is made, if it is made to appear to the court that plaintiff has made payment to the city of any sum to apply on the former assessment, it will be its plain duty to take that into consideration, and not require a double payment. Rehearing denied, with $25 costs.