72 P. 445 | Cal. | 1903
Lead Opinion
This action was to foreclose the lien of a street assessment. Defendants answered without demurrer, and judgment passed for plaintiff. Defendant Nicol appeals from the judgment upon the judgment-roll alone.
The principal point which he here urges is, that the complaint does not state facts sufficient to constitute a cause of action. This point is not waived by the failure to demur, nor is it cured by verdict or judgment. (Code Civ. Proc., sec. 434; Hurley v.Ryan,
"That under and in pursuance of said act, approved March *56 18, 1885, and the acts amendatory thereof and supplementary thereto, the following proceedings were duly had and taken, to wit: —
"That on the eighth day of July, 1895, the board of supervisors of said city and county, at a regular meeting thereof, duly made and passed a resolution, to wit, resolution of intention No. 12,603, describing the work, wherein and whereby said board resolved that it was their intention to order the following work in said city and county to be done and improvement to be made, viz.: —
"That Corbett Avenue, from the easterly line of Clara Avenue to the southerly line of the crossing of Corbett Avenue and Caselli Avenue, be graded to the official line and grade; that redwood curbs and rock gutterways be constructed thereon, and that the roadway and sidewalks thereof be macadamized; that three cesspools and culverts be constructed on the crossing of Corbett Avenue and Caselli Avenue, and that a cesspool and culvert be constructed on Corbett Avenue at each of the following points, viz.: On the southwesterly and northwesterly corners of Clara Avenue; on the southwesterly corner of Hattie Street; on the northwesterly corner of Corbett Place; on the southwesterly corner of Danvers Street; on the westerly corner of Mars Street, and on the southeasterly corner of Moss Avenue; and that a cesspool, with culvert and grating, be constructed on the northerly curb line of Corbett Avenue, opposite Hattie Street, and on the northerly curb line of Corbett Avenue, opposite Danvers Street; and that an 18-inch iron-stone pipe sewer be constructed in the southerly portion of the intersection of Hattie Street and Corbett Avenue and on the southerly portion of the intersection of Corbett Avenue and Danvers Street."
It is plain that the resolution of intention here pleaded does not describe the work as required by section 3 of the Improvement Act. Under numerous decisions of this court the insufficiency of such a resolution to confer jurisdiction is declared, and, as a consequence, the board failed to obtain jurisdiction to order the work, and the assessment therefor created no lien upon the property. (Schwiesau v. Mahon,
Herein reliance is had upon section
The judgment appealed from is therefore reversed.
McFarland, J., Van Dyke, J., Lorigan, J., and Beatty, C.J., concurred.
Dissenting Opinion
I dissent. I am of the opinion that the allegation as to the resolution of intention is sufficient in the absence of a special demurrer. While it is essential, under the decisions of this court, that the resolution of intention should state what materials are to be used in the proposed work, it has never been held, so far as I am advised, that the complaint in an action to foreclose the assessment lien must describe the work with the same degree of exactness. If, however, it affirmatively appears from the complaint that the resolution of intention did not so specify the materials, and, consequently, did not describe thework in the manner contemplated by statute, the complaint, of course, fails to state a cause of action. In this case it cannot, in my judgment, be said that this fact affirmatively appears. It is *59 alleged that the resolution of intention described the work, and this should be construed as alleging such a description as is required by the statute. The complaint does not say that the description of the work contained therein (i.e. in the complaint) is the same as that contained in the resolution, and such a conclusion is not the necessary effect of the allegations. The complaint may be somewhat ambiguous in this respect, but that was a matter for special demurrer.
The plaintiff is further assisted by the allegation of the complaint that the order for the work was duly given and made and passed, which could not be true if the resolution of intention had failed to state the nature of the materials. The allegation implies that the board had jurisdiction to make the order, and, consequently, that the resolution of intention sufficiently described the work. (Pacific Pav. Co. v. Bolton,
Dissenting Opinion
I dissent. The complaint does not purport to set forth a copy of the resolution of intention, and it is manifest that it does not give a full copy. The allegation is, that the board "duly made and passed a resolution of intention No. 12,603, describingthe work, wherein and whereby said board resolved," etc. And then follows the description of the work as stated in the main opinion. This description is not alleged to be the same as that contained in the resolution, and it cannot be presumed to be the same. The appeal is from the judgment and is based on the judgment-roll. There is no demurrer, either general or special. And, so far as appears from the record, no objection whatever was made in the court below to the sufficiency of the complaint. It is not a case of a failure to state facts, but of a defective statement of facts. If, notwithstanding the statement of the work ordered done, the complaint had contained a separate specific allegation that the resolution did describe the work, instead of the recital "describing the work," it would clearly be sufficient upon appeal. "It is too late for a defendant, after verdict, to object to defective allegations in the complaint, which, if he had pointed them out by specific demurrer before the trial, or by objections to the evidence at the trial, might have been avoided by amendment." (Larkin v. Mullen,
Rehearing denied.