47 Cal. 9 | Cal. | 1873
The action is to enforce the lien of a street assessment, and a judgment having been entered for the plaintiff, the defendants, Henarie and Meyer, prosecute separate appeals. One of the points made by the defendant Henarie is, that the plaintiff’s lien, which was in force at the commencement of the action, expired by limitation before the judgment was entered, and therefore cannot be enforced. But this point was decided otherwise in Randolph v. Bayue, 44 Cal. 366. The only remaining point relied upon by the same defendant is, that the Court erred in allowing interest on the amount of the assessment. The contract under which the work was performed was awarded and entered into in the year 1867. Subsequently, by the Act of March 26th, 1868 (Stats. 1867-8, p. 363), it was provided that “ after the return of the assessment and warrant as aforesaid, all amounts' remaining due thereon shall draw interest at the rate of one per cent, per month until paid.” The assessment in this case was made March 8th, 1869, nearly one year after the passage of the Act. The argument of counsel is, that the rights of the parties were fixed by the contract, and by the law as it then stood; and that it was not competent for the Legislature, by a retroactive enactment, to impose a new burden, in the form of interest, on the property owner. The reply to this proposition is, that there was no contract Qr proceeding to which the property owner was either a party or privy prior to the assessment. The municipal authorities determined that it was expedient to improve a public street, and after the proper proceedings were had, awarded a contract for that purpose. The parties to the contract were the contractor on one side, and the Superintendent of Streets, acting in his official capacity, on the other. The law provided that the cost of the work should be borne by the property fronting on the improvement, and that on the completion of the work an assessment should be made by the Superintendent, apportioning the amount amongst the several parcels of property, upon a basis prescribed by the statute. On the róturn and recording of the assessment,
The defendant Meyer, in his answer, sets up as a defense, that he is the owner in fee of the lot in controversy, under a tax deed issued upon a sale' for State and county taxes for the fiscal year of 1869-70; that the tax deed conveyed the title, discharged of the plaintiff’s lien, which, however, remains as a cloud upon the title. He therefore prays that the lien claimed by the plaintiff be adjudged to be inoperative, as against the defendant’s title, and that the plaintiff be restrained and debarred from prosecuting or asserting it, and for general relief. At the trial the plaintiff offered to dismiss the action as to Meyer, who objected to the dismissal, and the court thereupon denied the motion to dismiss, and the plaintiff excepted. But he cannot avail himself of the exception on this appeal. Having submitted to the judgment and prosecuted no appeal from it, he cannot, on an appeal by the defendants, review the rulings of the Court
Judgment affirmed as to the defendant Henarie, and reversed as to the defendant Meyer, as to whom the cause is remanded for a new trial.