People v. San Francisco & San Jose R. R. , 1 Cal. Unrep. 391 ( 1867 )

SAWYER, J.

Upon the views we take, it will be unnecessary to notice all the points discussed in the briefs. It clearly appears in the record and it was affirmatively shown by the plaintiff that no valid assessment had been made at the time this suit was instituted. When the suit was commenced, therefore, there was no delinquency on the part of the defendant, and no cause of action had accrued. It is unnecessary to determine whether, under the law subsequently passed, the assessment was afterward perfected, so that the tax became a valid charge, for, until it was perfected, there was no valid tax, and no cause of action against defendant existed.

The defense was available in some form: People v. Waterman, 31 Cal. 413. We will not now stop to inquire whether it was technically made in the proper form, for, if not, the defendant would he entitled to correct the mistake if the ease should go back for a new trial, and it is apparent that the judgment is in accordance with the legal rights of the parties. It would be useless to send the case back when the plaintiff could not possibly recover in the present action. Besides the defendant has since paid a sum satisfactory to the hoard of supervisors, and the litigation now seems to be in regard to the fees of the district attorney, which he must fail to recover in any event for the reason before stated.

Judgment affirmed.

We concur: Sanderson, J.; Currey, C. J. I dissent: Rhodes, J.