
    Cole McCrea v. The City of Leavenworth.
    
      City — Improvement of Street — Tax — Injunction. A plaintiff wbo seeks to restrain a city of the first class from collecting a special tax on his property on account of the cost of the improvement of a street upon which his property is situate is not entitled to a judgment on the pleadings when an answer by said city is on file, verified by the city attorney, that is in effect a general denial.
    
      Error from Leavenworth District Court.
    
    The opinion states the case.
    
      Cole McOrea, plaintiff in error, for himself.
    
      C. F. W. Dassler, for defendant in error.
   Opinion by

Simpson, C.:

The plaintiff in error, with many others who are not here complaining, commenced an action in the district court of Leavenworth county, on the 9th day of August, 1887, to restrain the collection of an assessment upon their lots for paving with cedar blocks the street upon which the lots fronted. A special ordinance was passed by the city on the 23d day of July, 1887, determining the specific amount of special tax levied upon each lot or half-lot in each block fronting on said street. At the April term, 1888, the district court of Leavenworth county refused to restrain the collection of the special tax, and the case is here for review. At the conclusion of the trial in the district court, time was given for the plaintiff in error to make a case for this court; but this was not done, and the order allowing it was subsequently vacated, at the request of the plaintiff in error. He brings here a certified copy of his petition, with exhibits, the answer of the defendant city, a motion for judgment on the pleadings and the order overruling it, with some other matters, and a copy of the final judgment; and these are certified to by the clerk as being true copies of the originals on file in his office. There is nothing then before this court but a certified copy of the pleadings and judgment. There is no case-made, no bill of exceptions, no evidence. There is a motion for a judgment for the plaintiff in error on the pleadings, and an adverse ruling thereon, and there are.a number of propositions that by inference were propounded to the trial court for answer, but as the evidence is not here we do not know whether any or all of them would be material as special findings of fact or conclusions of law. The motion for judgment on the pleadings was properly overruled, because there was a verified answer on file at the time the motion was made. There is one question that might arise on the pleadings and judgment; that is, are the allegations of the petition sufficient to sustain the judgment? But as the judgment in this case was against the plaintiff below and the plaintiff in error here, that question is not presented. In a word, this record is in such condition that we have no power to determine the very many questions suggested by the briefs of counsel, whose friendly efforts ought to have been aided by a more complete transcript of the proceedings had in the trial court.

We recommend an affirmance of the judgment.

By the Court: It is so ordered.

All the Justices concurring.  