Bogue v. City of Los Angeles

245 P. 173 | Cal. | 1926

The purpose of this action is to enjoin the City of Los Angeles and the other defendants, officers of said city, from carrying forward to completion improvement proceedings initiated under the Street Improvement Act of 1903 (Stats. 1903, p. 376). Following an order overruling a general demurrer to the complaint the defendants refused to answer, whereupon a judgment of injunction was entered against them as prayed. From said judgment the defendants appeal.

The improvement proceedings and the issues involved herein are the same as those involved in the case of The O.T.Johnson Corporation v. The City of Los Angeles, ante, p. 308 [245 P. 164], with the exception that the plaintiffs herein, who are the owners of property proposed to be taken for the opening of the new street from Ninth and San Pedro Streets to Tenth and Main Streets, in addition to the matters set out in the complaint in the other action, charge the defendants herein with knowingly proceeding under a misleading ordinance of intention and notice of public work with the intent to deceive and defraud plaintiffs, and that they, the plaintiffs, were deceived thereby to their damage. They allege that they knew of the adoption of said ordinance and of the notice of public work and relied thereon, believing that the improvement contemplated by the description therein contained was the opening, widening and extending of the streets named therein, including the opening of Tenth Street from San Pedro to San Julian Streets and the widening of Tenth Street from San Julian Street westerly therefrom, and that because of their reliance on said description they did not protest against the said improvement and did not discover the fact that the city proposed to take their lands for the purpose of opening a new street not described until the time for protest had expired. The defendants argue that their admission of the said allegations does not amount to an acknowledgment of fraud for the reason, so they contend, that said description and notice were sufficient and therefore the plaintiffs could not be misled; but inasmuch as the judgment herein must be affirmed because of the failure of the defendants to observe jurisdictional requirements, as set forth in the opinion in the other case, we deem it unnecessary to enter upon a discussion of the effect of these additional admissions in the pleadings, even though we should hold, as plaintiffs contend, that they in themselves are sufficient to sustain the action of the trial court.

On the authority of the case above referred to, it is ordered that the judgment herein be and the same is hereby affirmed.

Waste, C.J., Seawell, J., Richards, J., Curtis, J., Lawlor, J., and Lennon, J., concurred.