The following opinion on motions for rehearing, leave to amend answers, and motions to modify judgment, was filed January 5, 1905. Judgment modified:
Letton, C.Appellants have filed motions herein, relating to that part of the decree in favor of Harriet L. Pritchett, for rehearing; for leave to amend answers in this court, and that the case may be remanded with directions to permit them to amend answers beloiv. Since appellants seem to have misunderstood the language of the opinion as to the time of publication of the notice required to be given property OAvners to designate the material AAdiich they desire to be used in repaving, it is perhaps advisable to state that it Avas not the intention of the court to hold that this notice should be published each day for 30 days. Some of the ambiguity may come from the fact that the writer adopted the language of appellants’ brief, wherein it is statéd:
*560“It is apparent that the 30 days’ notice was not given by publication as required by the ordinance.” The statute and ordinance only require that the notice be published once, notifying the property owners that they must within 30 days of the publication of such notice select the material to be used. The notice in this case was published on August 2, 1897. It stated that the 30 days Avould expire on August 31, 1897, at noon, Avhich was incorrect. Appellants noAV argue that, though the notice informed the property OAvners that the 30 days Avould expire at noon on August 31, this AAras a mere irregularity, because the charter, the ordinance and the notice itself informed them that they had 30 days from the publication of the notice Avithin Avhich to designate said material, citing Armstrong v. Middlestadt, 22 Neb. 711, and Scarborough v. Myrick, 47 Neb. 794. We are of the opinion that this argument is sound. That if, in fact, 30 days had elapsed before the council took any action upon the matter, the recital in the notice that the time would .expire several days before the 30 days elapsed Avould be merely an irregularity, and Avould not prevent the council from acquiring jurisdiction. The evidence shows however that, on the first day of September, 1897, and before the expiration of 30 days from ' the publication of the notice, the council acted, and passed an ordinance ordering the improvement of the street by repaving with sheet asphalt-urn. We held in Morse v. City of Omaha, 67 Neb. 426, that the council Avas Avithout jurisdiction to act until the expiration of the 30 days given property owners to select material, and are still of that opinion. The council, therefore, having acted before the 30 days expired, Avas without jurisdiction to pass the ordinance and its proceedings Avere void.
The appellees also filed motions to modify the judgment of this court as to the curbing and guttering assessments in paving districts numbered 48 and 67. The opinion holds correctly that the city council had power to order curbing and guttering done upon the streets AAdiich had been ordered paved, Avithout any petition of the property owners being *561presented for that purpose. It is conceded, however, that no notice of the sitting of the board of equalization held to equalize such taxes in said districts was ever given. This being so the assessment was unauthorized, and the taxes are void. The decree of the district court, therefore, as to such taxes should be affirmed.
1. Paving: Notice: Jurisdiction. Under tie statute governing cities of the metropolitan class (Compiled Statutes, 1897, ch. 12a, sec. 110), property owners of a paving district must be allowed 30 days from the approval and publication of the ordinance declaring the improvement necessary in which to designate by petition the material to be used in repaving. But if a petition signed by the property owners representing a majority of taxable foot frontage, designating the material to be used, is filed, the mayor and council will not lose jurisdiction of the proposed improvement by acting upon such petition before the 30 days has expired, if no other petition, is filed within that time from which it appears that the necessary number of property owners have within the 30 days designated another material.*561At the hearing our attention was not called to the fact that the Omaha Loan & Trust Company Savings Bank ivas the owner of other property, the taxes upon which are in controversy in this suit, besides that situated in district numbered 48. The opinion therefore only relates to the property of the bank in that district, and the decree should be modified so as to provide that the action of the bank be dismissed as to its property described in district numbered 48, and that otherwise the judgment of the district court should be affirmed.
By the Court:For the reasons stated in the foregoing opinion, the several motions of appellants herein referred to are overruled, and the judgment heretofore entered in this case is so modified as to dismiss the action of the Omaha Loan & Trust Company Savings Bank as to its property in paving district numbered 48 described in the pleadings. In all other respects the judgment of the district court is affirmed.
Judgment modified.