Moore v. City of Spokane

Decision Date17 November 1915
Docket Number12664.
Citation152 P. 999,88 Wash. 203
CourtWashington Supreme Court
PartiesMOORE et al. v. CITY OF SPOKANE.

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by Jennie G. Moore and others against the City of Spokane to set aside a street improvement assessment roll. Judgment for plaintiffs, and defendant appeals. Reversed.

H. M. Stephens, Wm. E. Richardson, Ernest E Sargeant, and Dale D. Drain, all of Spokane, for appellant.

Hamblen & Gilbert, of Spokane, for respondents.

MAIN J.

This is an appeal from a judgment of the superior court for Spokane county annulling and setting aside the second reassessment roll for the improvement of McClellan street and Ninth avenue in the city of Spokane. The respondents are the owners of three lots which parallel McClellan street and abut upon Eighth avenue at one end and Ninth avenue at the other. These lots are 300 feet in length and each 50 feet in width. The improvement for which the assessment was made was the grading, paving, curbing, and sidewalking of McClellan street between Eighth and Ninth avenues and Ninth avenue from the west line of McClellan street to the west line of Grand boulevard. The original assessment was confirmed by the city council, and upon appeal was set aside by the superior court. The first reassessment was likewise confirmed and set aside. The questions involved in those appeals from the city council to the superior court were other and different questions from those involved in this appeal. The streets upon which the improvement was made were graded and paved to the width of approximately 50 feet. The respondents claim that a pavement 30 feet in width would have been sufficient for what is known as a local street, but that the wider pavement was due to the fact that the streets in question were a link in an arterial highway. The property of the respondents affected by the improvement was described by some of the witnesses as semibusiness property and by others as property the most valuable use of which would be for a first-class apartment house or apartment houses. The amounts assessed against the three lots of the respondents were, respectively, $2,779.10, $1,427.10, and $525.80, making a total of $4,732. The trial court found that the city council acted arbitrarily in assessing the entire cost of the improvement to the abutting property within the termini of the improvement, and that the cost of the improvement should have been spread over an extended district. From the judgment setting aside the roll, the present appeal is prosecuted.

The respondents open their brief with a motion to strike the brief of the appellant and affirm the judgment for the reason, as it is claimed, that the appellant in its brief has failed to set out any assignments of error, as required by section 1730, Rem. & Bal. Code, and rules 8 and 12 (132 P. xii) of this court. Construing this statute and the rules referred to, it has been held that error not pointed out in the brief of the appellant with reasonable clearness will not be considered; but where the law has been substantially complied with, and we are able to discover from the brief the errors relied upon for a reversal, a motion to strike the brief and affirm the judgment will not be granted. Crowley v. McDonough, 30 Wash. 57, 70 P. 261; Johnston v. Gerry, 34 Wash. 524, 76 P. 258, 77 P. 503.

In the present case, while the error relied upon by the appellant for a reversal of the judgment is not stated in its brief with commendable precision and definiteness, we are able to discover from the brief the claimed error of the trial court which is relied upon. This error is the act of the superior court in entering a judgment which annulled and set aside the assessment roll, instead of confirming the same. No error in the admission of evidence, nor in any other matter which should be covered by a separate and distinct assignment of error, is complained of. To strike the appellant's brief and affirm the judgment because there is not a more literal compliance with the statute and the rules would be a ruling too severely technical.

In support of their motion to strike and affirm, the respondents cite Haugh v. Tacoma, 12 Wash. 386, 41 P. 173, 43 P. 37; Perkins v. Mitchell, etc., Co., 15 Wash. 470, 46 P. 1039; and Doran v. Brown, 16 Wash. 703, 48 P. 251. In those cases the briefs of the appellants were stricken and the judgment affirmed because in the briefs of the appellants there was not a substantial compliance with the statute and the rules, and the errors relied upon for reversal could not be determined from the briefs. We think the appellant's brief in this case comes within the rule first stated, and not within the rule of the cases cited by the respondent. The motion to strike the brief and affirm the judgment is denied.

Upon the merits, the first question is whether the second reassessment was valid because it assessed a specific sum against each of the three lots owned by the respondents, and did not spread the assessment in accordance with the zone system, as provided by section 13, c. 98, Laws of 1911. By the ordinance, the cost of the improvement was to be borne by the abutting property within the termini of the improvement. Had the assessment upon the respondents' lots been made according to the zone system, as set out in the statute, it does not appear that the amount of the assessment upon the three lots would have been different from that levied against them according to the method adopted. Before the...

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15 cases
  • Dill v. Zielke
    • United States
    • Washington Supreme Court
    • October 24, 1946
    ... ... Nina E. Dill against Mary Zielke and the First National Bank ... of Spokane to recover possession of real property previously ... sold by plaintiff under a forfeitable ... appurtenances, situated in the city of Spokane ... The ... contract recited that the purchase price of the ... Bennett, 190 Wash. 115, 66 P.2d 875, ... citing as sustaining authority Moore v. City of ... Spokane, 88 Wash. 203, 152 P. 999, we again treated our ... rule as a ... ...
  • Hasit, LLC v. City of Edgewood (Local Improvement Dist. # 1), Corp.
    • United States
    • Washington Court of Appeals
    • March 13, 2014
    ...wrong basis, where the evidence shows that the property is not assessed for more than it is benefited.Moore v. City of Spokane, 88 Wash. 203, 208, 152 P. 999 (1915). Docken's claim fails.2. The assessments were improperly based on costs that resulted in a benefit only to future users not as......
  • Group Health Co-op. of Puget Sound v. King County Medical Soc.
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    ...tyrannical, or predicated upon a fundamentally wrong basis, then courts may interfere to protect the rights of individuals. Moore v. Spokane, 88 Wash. 203, 152 P. 999; State ex rel. Yeargin v. Maschke, 90 Wash. 249, 155 P. 1064; In re Grandview Local Improvement Assessments, 118 Wash. 464, ......
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    • January 14, 1974
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