Farley

Upon petition for rehearing respondent urges that this court failed to apprehend and so to discuss and to decide the principal proposition upon which he relies, and there is merit in respondent's contention. Respondent's position as it now appears is that protests were filed before the eleventh day of July, 1911, but that the time for filing protests did not expire until July 13, 1911; nevertheless that on the eleventh day of July, before the expiration of the time within which protests might be filed, the city council took up the matter of the protests already filed and continued and adjourned the hearing of the protests until the twenty-fourth day of July, 1911; still further that the street law provides (Stats. 1911, pp. 734, 735) that "at the next regular meeting of the city council after the expiration of the time within which said protest may be so made, the city council shall proceed to hear and pass upon all protests so made"; that the city council having continued the hearing of the protests until July 24th did not, as the law required, proceed to hear and pass upon the protests "at the next regular meeting of the city council after the expiration of the time" because…

Plaintiff having performed certain street work upon a street of the city of Oakland under the Improvement Act of 1911 (Stats. 1911, p. 730), brought his suit to foreclose an assessment lien on the property of defendant Reindollar. A general demurrer to his complaint was sustained and from the judgment which followed plaintiff has appealed. It is conceded that in all respects saving one the complaint is sufficient. The particular in which it was found to be insufficient is the following: The complaint alleged that a protest against the doing of the proposed work was made by certain owners of property; that defendant was not one of the *Page 704 protestants and, "That the said city council proceeded to hear and pass upon said protest at the next regular meeting of said city council, after the filing of said protest, to wit, on the eleventh day of July, A.D. 1911, and thereupon and at said time, by resolution, duly continued and adjourned said hearing to the twenty-fourth day of July, A.D. 1911, at the hour of 11:30 A. M. of said last-named day, and that due notice was given to said protestants of the time and place of hearing said protest. That the hearing of said protest carne on…