Blumenberg

This is an appeal from the judgment upon the judgment-roll alone. Judgment was given for the plaintiff upon a motion for judgment on the pleadings.

The case involves the same assessment as that reviewed in the case between the same parties, which was appealed to this court, and which is designated as No. 1656 on the Sacramento calendar. We refer to the opinion in that case for a fuller statement of the facts, ante, p. 532. The object of the present action is to foreclose the lien of the assessment for the remaining sixty-five per cent of the amount thereof, calls for that portion having been made after the former suit for the first thirty-five per cent was begun. This action was begun in May, 1908. The only additional matter to be here considered arises from the fact that in this case it is alleged and admitted that, after the assessment-list was filed in the office of the county treasurer, an action, under section 3493% of the Political Code, was begun by the district in the superior court of the county against the defendants and others as owners of lands in the district subject to the assessment, to determine the validity of said assessment; that the defendants were duly served…

I dissent.—The validity of the assessment has never been questioned by defendants, but, on the contrary, expressly conceded in the former action as in this. Their defense is that the proceeds of a legal assessment were so misapplied as to do them an injury instead of conferring a benefit. The judgment in this case should follow the judgment in the other according to the stipulation.