52 Wis. 98 | Wis. | 1881
This action is brought against the city of Milwaukee, the city treasurer, and the holder of the certificate on the north half of lot 9, and the holder of the certificate on lot 16 in block 160 in said city, issued on the sale of said premises for assessments for street grading in front of the same, to set aside and vacate the assessments, sale and certificates, and to enjoin the city and city treasurer from executing deeds on said certificates, and the holders thereof from applying for the same. Amongst other defects claimed to render them void, it is averred in the complaint that the premises were greatly damaged by such street improvement, and that no damages whatever were assessed, and that the assessments were solely for pretended benefits to the premises, and that such benefits were arbitrarily determined without viewing the premises, and much greater than the true amount. The allegations to this effect were sufficiently certain, and we do not think they were liable to the criticism made, that they do not express clearly this fatal defect in the assessments.
The demurrer is on two grounds: (1) That the complaint does not state a cause of action; and (2) that there is an improper joinder as defendants of the two separate holders of the certificates, not jointly interested in either.
The defect in,the assessment complained of- as above has been so recently arid fully considered and passed upon by this court, and held to be fatal to the assessment, sale and certificate, and good ground for setting them aside in a suit in equity, that we need only refer to the decisions, without a reiteration of the reasons. The whole subject was most ably and exhaustively treated in the opinion of. the late learned and eminent chief justice, in Johnson v. The City of Milwaukee, 40 Wis., 315, so that nothing is left to be said; and that case was fol
The position of the learned counsel of the respondents, that the court has no jurisdiction in such a case because the law has provided an appeal from the assessment and made that remedy exclusive, cannot be maintained. • The complaint here is that there never was any valid assessment whatever for any purpose, and there was no assessment to appeal from. But if an appeal might have been taken, and this defect in the assessment taken advantage of on such appeal to have the assessment set aside, which is very doubtful, such remedy is not exclusive in such a case as this. Harrison v. The City of Milwaukee, 49 Wis., 247.
It is objected that it is not alleged that the taxes upon the premises have been paid. This is not good ground for a joint demurrer in this case, because not applicable to both lots. It does not appear that there were any unpaid taxes except a small amount against one of the lots.
As to the second cause of demurrer, these two defendants hold certificates having their origin in and based upon the same general proceedings which are sought to be set aside, and they are both sought to be restrained, by injunction, from obtaining title by deed through one course of void proceedings; and most certainly the plaintiffs could obtain very inadequate relief without the presence of both in one action. They are both interested in the controversy, and it makes no difference whether they are equally so or not: they are prqper parties, by all authority, and especially by the decisions of this coilrt in similar cases. Blake v. Van Tilborg, 21 Wis., 672; Bassett v. Warner, 23 Wis., 673; Sup'rs Douglas Co. v. Walbridge, 38 Wis., 179. The authorities cited by the learned counsel of the respondents are not applicable to such a case. The demurrer should have been overruled.
By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.
