Eldred

Action brought in the police court to recover city taxes assessed against the property of appellant. A demurrer to the complaint was overruled, whereupon appellant answered, setting forth, among •other matters, that the common council had no power to levy the tax, that the same was illegal and void, and asking that the action be transferred to the superior court for trial, under the provisions of section 838 of the Code of Civil Procedure. The application for a transfer was denied, and the court proceeded to hear the cause upon its merits, whereupon judgment was rendered for plaintiff for the sum demanded and costs. Appellant took an appeal to the superior court from the judgment on questions of both law and fact, and judgment was again rendered in favor of respondent. A motion for a new trial, based upon a statement of the case, was denied, and this appeal is prosecuted from the judgment and order denying a new trial.

If the answer of appellant, filed in the police court, did not raise an issue as to the legality of the tax sought to be recovered, it follows that the judgment of the superior court was final, and this appeal should be dismissed, but upon an examination of the…