Dorland v. McGlynn

47 Cal. 47 | Cal. | 1873

By the Court, Belcher, J.:

In this action, which was for a street assessment in the City of San Francisco, the plaintiff recovered judgment, and the- defendants have appealed from the judgment and from an order denying their motion for new trial.

The first two points presented by the appellants, to the effect that the liens had expired by limitation before the rendition of the judgment, and that the law making the assessment, warrant and diagram, with the affidavit of demand and non-payment, prima facie evidence of the indebtedness- and o t the right of the plaintiff to recover in the action, had been repealed by the Act of April 4th, 1870, were considered and overruled in Himmelman v. Carpentier, ante, p. 42.

The point that the notices having sealed proposals were irregular and void because they were not posted for five full days is answered by the pleadings. The complaint alleges that these notices were “conspicuously posted and kept posted in the office of the Superintendent of Public Streets and Highways of said city and county, for five successive days,” and this allegation is in no way denied by the answer.

The point that the Court erred in excluding parol testimony, offered to prove that the notices of award were not published, by order of the Board of Supervisors, is manifestly untenable. The records of the Board show that its clerk was directed to advertise the awards as required by law, and these records could not be contradicted by parol.

The only remaining point to be-considered relates to the description of the lots assessed. It is claimed that there is nothing in the assessments or diagrams showing whether the lots are situated in the city and county of San Francisco or elsewhere, and that the description of one of them is in other respects insufficient. The complaint describes the lots with particularity, and alleges that they are situated in the city and county of San Francisco, and were duly assessed as the property of. unknown owners. The answer denies only that the lot described as lot No. 5 was assessed for the exact sums named in the complaint, and that the diagrams attached to the assessments exhibited said lot and its relative location to the work mentioned. It is by no means clear, in view of the pleadings, that the point can be made; but waiving that question, we think it not well taken.

The assessments are wholly omitted from the record, and only a part of each diagram is shown. From the record, as presented to us, it does not appear whether the lots were or were not described as situated in the city and county of San Francisco. The alleged defect in the description of lot 5 consists in the fact that the length of some of the back lines is not shown on the diagrams, and that one of them, which is represented in the complaint as a straight line, is shown on the diagrams by two lines meeting at an obtuse angle, so as to include a small triangular piece of ground not owned by the defendants.

The assessments referred to the diagrams for description, but it was agreed that the assessments, warrants and returns were sufficient in form and substance. The diagrams correctly exhibited the street and street crossings on which work had been done, and showed the number of feet fronting assessed for the work contracted for and performed. They also showed the relative location of each lot or portion of lot to the work done. The statute required no more than this. It is evident that there was an intention to assess the lot owned by the defendants, and it is equally evident that the assessments, based as they are upon front feet, were no greater or less than they should have been. The defendants were made parties to the assessments. (Smith v. Cofran, 34 Cal. 310.) If under these circumstances the defendants felt aggrieved by the errors complained of in the diagrams, they had an appeal to the Board of Supervisors, who were authorized to instruct and direct the Superintendent to correct the diagrams, or to make and issue new ones. "When an appeal lies to the Boardj it has been held in numerous cases that that is the only remedy.

The judgment and order affirmed.