41 Wash. 599 | Wash. | 1906
The city of Seattle levied a special assessment to pay for paving certain streets. When the work was completed, it was ascertained that said assessment produced an excess of about $19,000 over and above what was necessary to fully pay the cost of the improvement. Appellant was one of the owners of property specially assessed. He instituted this proceeding toi compel the city, by mandamus, to refund to him the pro 'rata portion of said excess which should come to him. The trial court sustained a demurrer to his complaint, on the ground that the action was not commenced
Respondent moves to dismiss the appeal herein, (1) for the reason that the amount involved is less than $200; (2) for the reason that the controversy, on account of the enactment of said ordinance, has ceased. Appellant urges that the last ground is not well takenz for the reason that the city cannioit pay him under this ordinance as long as the judgment of the lower court remains
This disposition necessitates our consideration of the question of costs. It appears that this appeal was taken prior to the passage of the ordinance wherein and whereby the city made provision for the payment of appellant’s claim. We think appellant is entitled to such costs as he incurred up to the date that said ordinance was approved by the mayor, to wit, December 28, 1905. The appeal will be dismissed, and costs in this court taxed in favor of appellant.
Mount, C. J., Cbow, Hadley, Dunbab, and Rudkin, JJ., concur.