State v. Wilson

• Decision Date: 05 July 1923
• Docket Number: 17798.
• Citation: 125 Wash. 445,216 P. 847
• Parties: STATE ex rel. PENNOCK et al. v. WILSON et al.
• Court: Washington Supreme Court

216 P. 847

125 Wash. 445

STATE ex rel. PENNOCK et al. v. WILSON et al.

No. 17798.

Supreme Court of Washington

July 5, 1923

Department 1.

Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by the State of Washington, on the relation of Henry W Pennock, as guardian, and another, against C. N. Wilson and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with instructions.

James R. Gates and Henry W. Pennock, both of Seattle, for appellants.

W Habel, of Montesano, for respondents.

BRIDGES J.

By this suit the plaintiffs sought an order of the court requiring the defendants to make a reassessment on account of certain local improvements and have appealed from a judgment dismissing their action. At the time the matter came on for trial, each of the parties moved for judgment on the pleadings. The motion of the defendant being granted, no testimony was taken.

The facts are these: In 1910 the city of Montesano created local improvement district No. 27, within which it determined to make certain street improvements. The contract for these improvements was let to the Anderson Construction Company. The total amount of the cost of the improvement was $23,066.55, and the total amount of assessments levied by respondents to pay these charges was $22,191.18. These were made on the 13th day of December, 1910. By virtue of the ordinance the assessments were to be due January 12, 1911 but in the event they were not paid in full by that time then they should be payable in 10 annual installments, with interest at 8 per cent. Certain of the property holders paid the whole of their assessments prior to January 12, 1911, and the city issued to the contractor two warrants, aggregating $6,366.55, the same being payable out of moneys then in the special fund. From time to time as the work progressed bonds numbered 3 to 169. inclusive, each for the principal sum of $100, were issued and delivered to the contractor. Subsequently, the appellant Hostetler purchased from the contractor bonds numbered 147 to 153, inclusive, and the appellant Pennock, as guardian, likewise purchased bonds numbered 132 to 134, both inclusive, and at the time of the commencement of these actions they owned these bonds. All interest on the Hostetler bonds was paid to November, 1919 and all interest on the Pennock bonds was paid to November, 1920. No part of the principal has over been paid. This proceeding was instituted in July, 1922. It will thus be observed that the assessment made by the city was inadvertently and by mistake $875.37 less than the cost of the improvement, and it was to require the city and its authorities to make a reassessment to cover this amount of deficit that this action was instituted. It will be noted that this proceeding was commenced more than 10 years after the assessments were made. The trial court dismissed the action for the reason that it was 'not brought within the time limited by law.'

Each of the parties has cited and relied upon sections 41 and 45 of chapter 98, Laws 1911 (pages 468 and 471), also found in volume 3, Rem. Comp. Stats., as sections 9394 and 9398.

Section 9394 (being the same as section 41 of the 1911 Laws) reads as follows:

'An action to collect any special assessment or installment thereof, for local improvements of any kind, or to enforce the lien of any such assessment or installment, whether such action be brought by a municipal corporation or by the holder of any certificate of delinquency, or by any other person having the right to bring such action, shall be commenced within ten years after such assessment shall have become delinquent, or within ten years after the last installment of any such assessment shall have become delinquent when said special assessment is payable in installments.'

Section 9398 (being the same as section 45 of the 1911 statute) reads as follows:

'No city or town shall have jurisdiction to proceed with any reassessment or supplemental assessment unless the ordinance ordering the same shall be passed by the council or other legislative body of such city or town within ten years from and after the time the original assessment for any such improvement was finally held to be invalid, insufficient or for any cause set aside, in whole or in part, held

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