Strelau v. City of Seattle

• Decision Date: 22 April 1915
• Docket Number: 12456.
• Parties: STRELAU et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

147 P. 1144

85 Wash. 255

STRELAU et al. v. CITY OF SEATTLE et al.

No. 12456.

Supreme Court of Washington

April 22, 1915

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Suit by E. J. Strelau and others against the City of Seattle and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Hastings & Stedman, of Seattle, for appellants.

Jas. E Bradford and Howard A. Hanson, both of Seattle, for respondents.

ELLIS J.

This is the third appeal involving the special assessment roll, made by the eminent domain commissioners and confirmed by the superior court on January 15, 1913, to pay for the West Wheeler street improvement in the city of Seattle. The action is one in equity, commenced on June 10, 1914, by property owners who did not appeal from the original judgment confirming the assessment roll, and who did not by petition, motion, or otherwise institute any proceedings in the trial court within one year from its entry to vacate or modify that judgment. In this action they seek the same relief which was accorded on the first appeal to the property owners who participated in that appeal, and which it may be assumed would have been accorded to the plaintiffs here, had they appealed from the original judgment. The trial court sustained a demurrer to the complaint and dismissed the action. Hence this appeal.

The first appeal was prosecuted, by certain of the property owners whose property was assessed, from the judgment of the superior court confirming the roll. We refer to the opinion in that case for a full statement of the physical conditions of the district. On that appeal the roll was remanded for revision because the cost of the 'lowland' roadway to the extent of about $30,000, was erroneously assessed to the 'highlands.' In re West Wheeler Street Seattle, 77 Wash. 3, 137 P. 303.

The second appeal was by the city from an order of the superior court re-referring the entire roll to the eminent domain commission to recast it throughout, in effect giving to those highland property owners who had not appealed from the original judgment of confirmation, or who had waived their appeal by voluntarily paying their assessments, the full benefit of the first appeal, in which they had not participated, and relief from a judgment in which they had acquiesced by their failure to appeal and by payment. On the second appeal we said that the opinion in the first appeal must 'be construed according to its necessary legal effect as applied to the parties and things before the court, and to parties in privity, rather than according to its literal terms.' We there pointed out that the statute, Rem. & Bal. Code, § 7797, in express terms makes the original judgment of confirmation a 'separate judgment as to each tract or parcel of land,' and declares that 'any appeal from such judgment shall not invalidate or delay the judgment except as to the property concerning which the appeal is taken.' We held that the decision on the first appeal 'could not and did not 'invalidate or delay' the original judgment as to property or delay' the original appeal was taken.' The cause was therefore remanded, with direction to enter an order reducing the assessments against the property of the appellants only, and reassess the lowlands to make up the resulting deficiency. In re West Wheeler Street, City of Seattle, v. Ankeny, 147 P. 873.

This court held the same way in the earlier cases In re Westlake Avenue, 40 Wash. 144, 82 P. 279, and Seattle v. Sylvester-Cowen Investment Co., 55 Wash. 659, 104 P. 1121. In the former case, after quoting the statute, Rem. & Bal. Code, § 7797, this court said:

'From this provision it appears that the action of this court can affect only the property of appellants, and that those property owners who did not appeal cannot share in the fruits of success with those who bore the burden of the appeal against the illegal assessment.'

While in the Sylvester-Cowen Case this court held that, on the application to the superior court to revise and correct the roll made by the eminent domain commissioners, that court acquires jurisdiction of the entire matter until final judgment, and may, when it deems that course equitable, grant relief to noncontesting property owners, that case also unequivocally reaffirms the rule announced in the Westlake Case confining that power to the trial and denying it to this court, as appears in the following language:

' In re Westlake Avenue, 40 Wash. 144, 82 P. 279, cited in support of the appellant's contention, states that the action of this court only affects the property of the parties who appeal. Obviously so, as the final judgment of the lower court is conclusive upon all who are content to accept it.'

The decision in the Case of Van Der Creek v. Spokane, 78 Wash. 94, 138 P....