Opinion of the Court — REAVis, J. [19 Wash. practice relating to that court. The motion to dismiss the appeal on the ground that it is from a judgment by default cannot be sustained. 2. It is also urged by counsel for respondent that the assignment of error by appellant is not sufficient, but the only question sought to be raised by appellant here is upon the sufficiency of the complaint to sustain the judgment, and its assignment of error is sufficient, under Goetzinger v. Rosenfeld, 16 Wash. 392 (47 Pac. 882), and McReavy v. Eshelman, 4 Wash. 757 (31 Pac. 35). 3. The vital question is, did the complaint state a cause of action against appellant? and this is the only question upon the record arising here. It is stated that street grade warrants were issued in payment of work done upon a street by a contractor payable out of a street grade fund, and the city had not collected, or attempted to collect, and could not have collected, from the special fund. The warrants specified the fund upon their face. In GermanAmerican Savings Bank v. Spokane, 17 Wash. 315 (47 Pac. 1103) the liability of a municipal corporation for street improvements was most elaborately and carefully considered. The previous decisions of this court were reviewed, and also other authorities, and the reasoning of the court in that case is decisive of the question involved in the case at bar. In that case the plaintiff sued to recover the amount due on street grade warrants issued to the contractor, and payable out of the street grade fund, and in the superior court obtained a general judgment against the city therefor, from which the city appealed. The foundation of the plaintiff's right of action was the delay and negligence on the part of the city's officers in providing the fund. In the case of Wilson v. Aberdeen, ante, p. 89 (52 Pac. 524) it was expressly ruled: "Warrants issued by a city for street improvements, to July, 1898.] Opinion of the Court - REAVIS, J. be paid out of a special fund, cannot be collected against the city generally, although the remedy to collect from the special fund is lost." The objection urged against the complaint, that it does not state facts sufficient to constitute a cause of action against the city of Spokane, is therefore determined by the two cases from this court above cited; and, upon the authority of those cases, the judgment of the superior court is reversed, with direction to enter judgment in favor of defendant in said cause. SCOTT, C. J., and ANDERS, J., concur. [No. 2785. Decided July 20, 1898.] CENA PLANT, Appellant, v. E. F. CARPENTER, Sheriff, Where a third party intervenes in a pending action for the purpose of claiming property, and judgment is rendered against intervenor upon demurrer to the complaint in intervention, such judgment is conclusive against the assertion of the same rights in a subsequent action. Appeal from Superior Court, Lewis County.—Hon. A. L. MILLER, Judge. Affirmed. Edward F. Hunter, for appellant. The opinion of the court was delivered by REAVIS, J.--Suit by plaintiff, Cena Plant, to enjoin the sheriff of Lewis county from executing a writ of restitution -- Opinion of the Court — REAVis, J. [19 Wash. issued in favor of the purchaser at a sale upon a decree of mortgage foreclosure, and to adjudge the writ void as against the plaintiff. On the 20th of January, 1896, judgment was rendered by the superior court of Lewis county in favor of the Commercial State Bank of Chehalis, plaintiff, against Salem Plant, for the sum of $765.33, including costs, and for a foreclosure of a mortgage described in the complaint and sale of the premises to satisfy the judgment; and on the 29th of February, 1896, the mortgaged premises were sold under the judgment, and the mortgagee became the purchaser. The complaint alleges that the sheriff is about to execute the writ and dispossess plaintiff, who is the wife of said Salem Plant, who executed the mortgage. It is also alleged that the premises mortgaged by Salem Plant were the homestead of Salem Plant and this plaintiff and their family, and that due selection thereof had been made by plaintiff, and notice given, and the facts are fully stated upon which plaintiff founds the claim of homestead. The answer of the sheriff denied that the premises were the homestead of plaintiff and her husband, and averred that the mortgaged premises were the separate property of the husband, Salem Plant, and that no selection of the homestead had been made. The answer also set up a plea of former adjudication of the homestead rights of plaintiff in the mortgaged premises. It is to this plea that we shall confine our attention. The proof taken in the superior court and the record shows that after the decree of foreclosure in the suit between the Commercial State Bank, as plaintiff, and Salem Plant, as defendant, the plaintiff in this action intervened and set up fully in her complaint in intervention all the facts constituting her right to the homestead, and also demanded that the premises be declared a homestead and July, 1898.] Opinion of the Court-REAVIS, J. protected by the court. foreclosure suit was regularly summoned to answer the complaint in intervention, and the plaintiff therein appeared and filed its motion that the complaint be dismissed, because it was filed without leave of court and because it did not state facts authorizing the intervention, and the motion was sustained, with leave to the intervenor to re-file her complaint, which was done instanter, and the plaintiff thereupon renewed its motion against the complaint because it did not state facts sufficient to constitute a ground for intervention, which objection the court sustained; and the intervenor, Cena Plant, requested permission to file an amended complaint, which was granted, and she was allowed ten days in which to file and serve an amended intervening complaint. It appears that intervenor did not file the amended complaint, as directed by the order of the court; and thereafter the court, on the 26th day of December, 1895, adjudged that leave having been given intervenor to serve and file an amended complaint in intervention, and her attorney having stated in open court that the intervenor would not further appear in the action, and the plaintiff demanding default against the intervenor, such default was granted and entered; and thereafter a final decree of foreclosure was rendered in the cause, in which it was adjudged that the defendants, and all persons claiming under them after the commencement of the action, be forever barred and foreclosed of all right, title, interest and equity of redemption in the mortgaged premises, or any part thereof, and that the plaintiff recover from the said Cena Plant its costs incurred or taxable, in consequence of her appearance and pleading in the action, and that execution issue therefor. The intervenor in the foreclosure suit filed her bill in the nature of a cross complaint against plaintiff, and set up the facts constituting The plaintiff in the mortgage Opinion of the Court- REAvis, J. [19 Wash. grounds of action, alleging the same cause of action and demanding the same relief that she demands in this suit. In the former action the objection to the complaint in intervention, which was in the nature of a demurrer, confessed the facts and demanded judgment that intervenor stated no grounds for relief. The court sustained plaintiff's demurrer, and, in default of an amendment of the complaint in intervention, gave judgment against intervenor. No exception was taken to the ruling of the court upon the demurrer, and no appeal taken from the judgment for costs against intervenor in the foreclosure suit. When a third party intervenes in an action pending for the purpose of claiming property, he is bound by the judg ment. Gumbel v. Pitkin, 113 U. S. 545 (5 Sup. Ct. 616); Benjamin v. Elmira, etc., R. R. Co., 49 Barb. 448; Johnston v. San Francisco Savings Union, 75 Cal. 134 (16 Pac. 753, 7 Am. St. Rep. 129). Judgment upon a demurrer or objection to a complaint that it does not state facts sufficient to constitute a cause of action, when final, determines the merits of the cause as between the parties and their privies. The case of Gould v. Evansville, etc., R. R. Co., 91 U. S. 526, was an action by plaintiff against defendants for debt, founded upon the judgment of a court of competent jurisdiction. Defendants pleaded in bar of the action a former judgment in their favor on a suit involving the same cause of action; that the defendants appeared in the action and demurred to the complaint, and the court sustained the demurrer and gave plaintiff leave to amend; but plaintiff declined to amend his complaint, and the court rendered judgment for the defendants. It does not appear that any appeal was prosecuted. The defendants maintained that the matters and things set forth in the complaint were the same as those set forth in the complaint in the last suit; that |