Dyer v. Scalmanini

Citations

• 69 Cal. 637
• 11 P. 327
• 1886 Cal. LEXIS 704

Syllabus

<p>Practice—Prior Action when not Bar—Dismissal.—An action will not be dismissed on the ground that at the time it was commenced there was another action pending between the same parties for the same cause of action, if prior to the trial of the second action the former had been dismissed by stipulation of the parties.</p> <p>Street Assessment — Cost of Unauthorized Work—Appeal to Supervisors. — A street assessment which includes the cost of more work than that authorized is not void as to the cost of work properly included therein, and may be corrected on an appeal to the board of supervisors. Id.—Action to Enforce Assessment—Second Assessment—Estoppel — Evidence. — The defendants, in an action for the enforcement of a street assessment in the city and county of San Francisco, averred in their answer that the assessment was void because it included the cost of work that was not authorized by the order of the board of supervisors, and procured the dismissal of the action on that ground. The superintendent of streets, acting upon the supposed invalidity of the assessment, thereupon made a second assessment, covering the work ordered by the board, which the present action was brought to enforce. The defendants set up the first assessment as a bar to the action. Held, that the defendants were estopped to deny the invalidity of the first assessment, and that the plaintiffs could introduce evidence of the estoppel without pleading it.</p> <p>Id. — Superintendent of Streets. —Held further, that the superintendent of streets had power to make the second assessment, which, if valid, superseded the first assessment.</p>