4 F.2d 821 | 9th Cir. | 1925
(after stating the facts as above). Upon a stipulation which waived a jury, but which was not in writing, the, ease was tried to the court. There was neither a request for special findings before the close of the trial, nor a motion for judgment upon the ground that there was no substantial evidence to sustain a judgment in favor of plaintiff. Therefore, as the court had jurisdiction of the subject-matter and of the parties, there is no question open -to review, other than the sufficiency of the pleadings to sustain the judgment. Law v. United States, 45 S. Ct. 175, 69 L. Ed.-(Jan. 5, 1925.); Emerzian v. Kornblum et al. (C. C. A.) 3 F.(2d) 995 (Feb. 16, 1925).
Counsel representing the county argue that the complaint fails to state a cause of action, in that it does not appear that claims for extras were itemized and verified as required by paragraphs 2434 and 2435, Statutes of Arizona (Civ. Code 1913), and that it appears that the action is barred by paragraph 2439 of the Statutes. By paragraph 2434 it is provided that every person having a claim against any county, except as referred to in the section, shall, within six months- after the last item of the account approved, present a demand therefor in writing to the board of supervisors, verified by affidavit of himself or his agent, stating minutely what the claim is for, and specifying each several item and the date and amount thereof, provided the board must not hear or consider any claim in favor of an individual against the county, unless an account, properly made out, giving all items of the claim verified, is presented to tho board within six months after the last item of the account is approved. Paragraph 2435 provides that no account shall be passed upon by the board unless made out as described in the preceding section, and filed at least one day prior to the session at wMch it is asked to be heard. Accounts so filed must be considered and passed upon at the next regular session after the same are presented, unless for good cause the board postpones the matter. Paragraph 2438 provides that, when the board finds that a claim presented is not proper, it must be rejected, or if it be
But, as the general finding is conclusive of the issues of fact against the plaintiff in error, it is established that the statement and claims were considered by the board, not only at the November meeting, when the board made a payment under the contract, bnt again when the board made a payment under the contract at a meeting on December 3, 1917, and that at the December meeting the bridge was accepted and further payments were finally refused. The first complaint was filed on May 31, 1918, and therefore the ‘action was brought within six months after final action by the board. With respect to the itemizing and dates and specification of the demand and account presented, the plaintiff in error is concluded by the general finding of the Court. Norris v. Jackson, 9 Wall. 125. 19 L. Ed. 608; City of Cleveland v. Walsh Construction Co. (C. C. A.) 279 F. 57.
The complaint being sufficient to support the judgment, we must affirm.
Judgment affirmed.