Stone-Easter, Inc. v. City of Seattle

Per Curiam.

The city of Seattle caused an improvement to be made on one of its streets at the expense of the property benefited. Certain of the property holders whose property had been assessed for benefits arising from the improvement protested to the city conncil against the amount of the assessment charged against their properties. The city council denied the protests, and confirmed the assessment roll as returned by the commissioner making the assessment. The property holders appealed to the superior court of King connty from the order confirming the assessment, giving a bond with sureties conditioned in accordance Avith the terms of the statute requiring such bond. At the hearing in the superior court, they obtained a judgment materially lessening the amount of the assessment. From this latter judgment the city gave notice of appeal to this court, but did not serve the notice of appeal upon the sureties on the bond gii^en on the appeal to the superior court.

The respondents move to dismiss the appeal for Avant of proper service, basing their motion on the authority of Shipp en v. Shippen, 91 Wash. 610, 158 Pac. 247. In that case we held that the failure to serve the notice of appeal on the sureties on a bond given by a non-resident plaintiff was a failure to properly perfect the appeal and required its dismissal.

The ruling was based on § 496 of Rem. Comp. Stat., and the principle announced is applicable to the present case, if it is not distinguishable for the reason suggested by. the city. The suggested distinction is this (we quote from the appellant’s brief):

“The bond required by the above quoted portion of Rem. Code1 [the section requiring a surety bond on an appeal by property owners from the order of the city council confirming the assessment roll to give security for costs] is not merely one insuring the payment of taxable costs but protects the City against all costs to which it is put by reason of the appeal being taken from the assessment roll as approved by the city council. The obligation of the surety on such a bond includes the payment of the fees of real estate experts and every expense which the City necessarily incurs in the defense of such an appeal. This being so, a separate action would have to be instituted upon the bond in order to determine the proper amount for which the surety was liable. ’ ’

But we cannot concur in this reasoning. The sureties on the bond mentioned are liable only for such costs and disbursements as are properly taxable in the proceeding, and these can be ascertained by the method pointed out by the code. This method permits no independent or separate action to recover them.

“There is no common law principle that permits a successful litigant to recover from his losing adversary the costs and expenses of the litigation; hence, if such right exists, it must be statutory. The legislature of this state has given to the successful litigant the right to have certain items of expense taxed as costs; but these must be taxed in the original action and not recovered by subsequent suit.” Perlus v. Silver, 71 Wash. 338, 128 Pac. 661.

See, also, Eggerth v. Spokane, 91 Wash. 221, 157 Pac. 859.

The appeal is dismissed.

1 Note: See Rem. Comp. Stat., § 7892-22.