*1 judgment with directions requested to reverse the we are court to enter favor of defendant trial present any $102,000. argument the sum of does not question of law. attempted appeal from the is affirmed. The denying
order new trial is dismissed. J., J., Wood (Parker), Vallée, concurred. Appellant’s hearing by for a the Supreme Court J., October 1950. Carter, Sehauer, J., voted for hearing. No. 17410. Dist., Aug 21, Second Div. Three. AGNEW, Respondent,
R. W. v. CITY OF LOS ANGELES
(a Municipal Appellants. Corporation) al., et City Jones, Assistant Chesebro, Attorney, Bourke Ray L. Doherty, A. Joseph City Attorney, N. Owen and James Attorneys, Appellants. Deputy *2 pro. Respondent. for Agnew, per., R. in W. brought proceeding for writ this a
SHINN, P. J.Plaintiff him city of to issue compel to of the mandate alleged that holds work. He he permit to a install electrical city contractor; the re that a license as an electrical state defray paid to until he had fused to issue a charges given had a other expenses inspections of and and damages that $1,000 payment bond of conditioned the any through the violation of the might person suffered challenged He building him. the ordinance grounds. In his requirements on constitutional these number did to in but he referred the ordinance any city in other manner. The attempt plead not it comply had with alleged failed answered deposit giving by making the the bond the ordinance city plead the required thereby. The answer of the did not referred to number. ordinance, although it was purpose of parties into a for the entered stipulated simplifying plain- the issues be tried. in tiff holds a and that the ordinance state license copies which were provisions, contains certain attached stipulation. the judgment plead- written motion for
Plaintiff filed a ings the The motion was Defendant judgment, which denied a appeals from the writ invalidity provi- ordinance mandate but declared the require deposit sions and the bond. not point is that the ordinance was
Defendant’s
bring
as
court for
pleaded so
it before the
consideration.
An
point
This
taken.
ordinance
well
day
(Code
referring
passage.
of its
Civ.
to its title
Proc.,
459.) Mere reference to an ordinance
number
§
Modesto,
(Redwood Theatres,
not
Inc. v.
sufficient.
119]; Bandini Estate
959].)
Payne,
parties
court deemed
It
is assumed
ordinance before
place the entire
stipulation to be sufficient to
insufficiency
any
notwithstanding
assumption.
pleadings.
support
not
record does
appear
not
was entered into for
does
that the
Although
use on motion for
plaintiff specified
stipulation,
pleadings
well
in
as
as
motion,
parties
his
the record does not show that
consented
as
court,
that the
should be considered
North
done in
etc.
Side
Assn. Hillside
Cal.
App.2d 609,
618],
appear
nor
that the
does
contrary,
court considered
recites
it.
arguments
that the
heard
parties
court had
had
respective
“read and considered
briefs and
parties”
copy
etc. The record
contains
certified
“Stipulation
of facts and
ordinances.”
Attached
photostat
plaintiff’s
exhibits are a
state
contractor’s
purports
license
photostat
be a
certain amendments to the
Angeles Municipal
re
Code
lating
$10.0
$1,000
bond. These ex
hibits are
identified
However, there are
also exhibits purporting
to contain ordinance
*3
“permit service
collection,” provisions
fees—advance
relating
to “permits,” provisions relating
permit
fees
numerous
other matters.
supplement
As a
transcript
clerk’s
there
copies
are
purport
provisions
be
of certain other
sections
the municipal
Except
code.
for the first
ex
two
hibits mentioned the
remainder are not authenticated
a motion for
on
pleadings,
as on
demurrer,
only
the court
(North
considers
Side etc. Assn. v.
supra;
Hillside etc.
Price,
Price v.
Cal.App.2d
;
85
Co.,
P.2d
Grant
Aerodraulics
101]
Cal.App.2d
;
National
Ins.
Auto
Co.
683]
Winter,
;
Merchants
22]
Ice
Glole Brew.
;
v. Garrison,
Kleiner
The be pleadings should not exercised so of the con pleaded. that are not There are other sideration summary procedure methods facts are not in where.the readily dispute or Aside from be established. stipula that the record indicates the court did not consider the tion, would assumed it was be not considered properly have been as a it eonld not used basis reason .that for. motion...... put of the ordinance can The pleadings and entire ordinance only amended issue stipu- provided manner in the law. The should purpose to serve the an amendment was not intended lation purpose, had been its the record if that petition, and only fragments confused, since greatly been would have numerous included and of the attached ordinance were latter These are were not verified exhibits requiring provision relevant whether impossible is to tell from the record permit. stipulations were considered additions unverified deemed the entire ordinance or whether the court find our- these circumstances we in evidence. Under to be record proper to determine without selves question. provisions in validity of the ordinance “Judgment Order”) judgment (denominated a reversed. (Parker), J., concurred.
Wood plaintiff VALLÉE, J.I dissent. The motion of was for and the on file “judgment herein ground that no issue of remains herein herein and on the fact clearly entitling plaintiff one of the sole issue is law and that motion which was judgment herein. hereby stipulated agreed “It reads: defendants, entitled, above and between the Angeles as to the issues of fact herein and the Los concerned, . . . herein as follows .” It was then Ordinances agreed is an electrical contractor licensed county and that the state ordinances ordinances of the attached thereto are provisions Angeles. are Various ordinances others set I to mean forth. construe that all ordinance necessary to a determination of the ease were set forth in *4 before appeared hearing the court was one of law. Defendants argued theory of the motion and all before were of law was says involved. in his “appeared Plaintiff brief that defendants earnestly argued only ordinance; of their propriety appellants was not raised court. lower This statement is not denied defendants. correctly. accept asserting (DeMirjian We it as must Lutinsky, 915, 50]; Standard Maryland Iron Cal.App. Wks. C.
P. 136].) Under these circumstances defendants should not now permitted say “that neither the trial court in the instance, nor this review, go Court outside themselves in deciding whether the motion properly granted.” appeal should be decided on its merits. A rehearing August 31, 1950.
Vallée, J., voted for a rehearing. Aug. No. 7848. Third Dist. Petitioner, THE McLAIN, SUPERIOR H. GEORGE COUNTY, Respondent. SACRAMENTO OF COURT