Brown

This appeal presents two questions: 1. Whether the court properly overruled defendant’s demurrer to plaintiff’s complaint. 2. Whether the court properly struck out a defense from the answer.

Respondent confesses error in striking out the defense, and Consents that the case be reversed on that ground. He says the point made by defendant on the demurrer is radical and important, and will be argued when the case is again here, in. such form as to require its determination. The question as to the correctness of this ruling is properly presented on this appeal from the judgment, and the consent of respondent to a reversal on some other ground, which does not dispose of the demurrer, cannot deprive appellant of his right to have it determined. *11 The question there raised is whether defendant can be put to the labor and expense of a trial on the merits or not. Naturally, it is the first point to be determined, and as the city of San Diego may have an interest in the question beyond this case, it is to be regretted that.we have not the advantage of the views of its counsel upon the subject.

The action is brought upon an assessment for street work.

It appears that the city council…