123 Iowa 301 | Iowa | 1904
The certificate on which action is brought represents the special assessment of the property of one Mason for curbing, which was set aside in an action by Mason against the city of Des Moines ei al., determined on appeal in this court, the action of the trial court in setting aside the assessment and canceling the certificate being affirmed. See Mason v. City of Des Moines, 108 Iowa, 658. The theory on which plaintiff seeks to recover judgment against the city in this action for the amount of the certificate is that, although the assessment was declared invalid for failure of the contractor to comply with the contract, yet the curbing which the contractor put in has remained as a permanent improvement to Mason’s property, and is of some value; and that the city should have reassessed the property for the reasonable value of such curbing, and, having failed to do so, is liable to the holder of the certificate for the amount which could have been collected by the city for his benefit. Although Mason was originally made a party defendant, any cause of action against him has been abandoned in this case by the filing of an amended petition in which the sole right of recovery alleged is against the city.
Counsel for appellant relies on the case of Ft. Dodge Electric Power & Lighting Company v. City of Ft. Dodge, 115 Iowa, 568, and other cases, some of which are therein
The view which we have taken of the case renders it unnecessary to decide whether appellant should have relief by mandamus rather than by action against the city to recover damages; but it may properly be suggested that in the Ft. Dodge Case, above referred to, no remedy by mandamus was available, and that, where the party complaining could have secured relief by compelling action by the city council in a proper case, he should resort to that remedy rather than to a suit for damages. If a reassessment had been proper, the city council could, no doubt, have been compelled to make it in a proper proceeding. People ex rel. v. Syracuse, 144 N. Y.
The lower court was right in sustaining the demurrer, and its judgment in favor of defendant is affirmed.