Diggins

Action upon a street assessment in San Francisco. Judgment was rendered in favor of the plaintiff against the defendant Byron Biggins, and upon the motion of the said defendant the court granted a new trial. The present appeal is from this order.

The complaint is in the ordinary form except that there is no averment therein that the board of supervisors had passed a resolution of intention to order the improvement for which the assessment was made. In his answer thereto the defendant, for a separate and special defense to the action, alleged that the resolution ordering the work referred to in the complaint was not duly passed by the board of supervisors; that it was passed by the board November 29, 1897; that more than six months prior to said date the board passed a resolution of intention to order such work, but that within ten days after the expiration of the time of the posting and publication of the notice thereof the owners of a majority of the frontage of the property fronting on said proposed work made and delivered to the clerk of said board a written objection and protest thereto, upon which the clerk indorsed the date of its reception by him; that no further…