87 P. 415 | Cal. Ct. App. | 1906
Action upon a street assessment in San Francisco. Judgment was rendered in favor of the plaintiff against the defendant Byron Diggins, and upon the motion of the said defendant the court granted a new trial. The present appeal is from this order.
The complaint is in the ordinary form except that there is no averment therein that the board of supervisors had passed a resolution of intention to order the improvement for which the assessment was made. In his answer thereto the defendant, for a separate and special defense to the action, alleged that the resolution ordering the work referred to in the complaint was not duly passed by the board of supervisors; that it was passed by the board November 29, 1897; that more than six months prior to said date the board passed a resolution of intention to order such work, but that within ten days after the expiration of the time of the posting and publication of the notice thereof the owners of a majority of the frontage of the property fronting on said proposed work made and delivered *242 to the clerk of said board a written objection and protest thereto, upon which the clerk indorsed the date of its reception by him; that no further proceedings were had in relation to the doing of said work until November 29, 1897, when it passed the aforesaid resolution ordering the work; and that the board did not prior thereto or relative to said order pass a resolution of intention to order said work.
Upon the trial of the cause the court found that all the allegations of the complaint are true, and that the board of supervisors did duly pass each and every resolution mentioned therein. It also found the aforesaid facts specially set forth in the answer of the defendant to be as therein alleged; and held as a conclusion of law that the plaintiff was entitled to the relief asked by it.
One of the grounds for a new trial specified by the defendant in its notice of intention therefor is the insufficiency of the evidence to justify the decision; and in the statement of the case it is specified as one of the particulars of such insufficiency that, whereas it appeared from the evidence that by reason of the protest of the property owners against the resolution of intention passed November 23, 1896, the board of supervisors ceased to have any authority to order the work, and could not order the same unless they should, after the expiration of six months, pass another resolution of intention to do so, there was no evidence that any other resolution of intention had been passed by the board, and that the finding of the court that the resolution set forth in the complaint was "duly" passed was not justified by the evidence.
The issue of fact upon which the plaintiff's right of recovery depended was whether the board of supervisors had jurisdiction to pass the resolution ordering the work to be done. The allegation in the answer that this resolution was not duly passed which, under the provisions of section 462 of the Code of Civil Procedure, was deemed controverted by the plaintiff, presented this issue of fact to be determined by the court; and the finding of the court that it was "duly" passed was a determination that the board had jurisdiction to pass it.
While the averment that an act has been "duly" performed is ordinarily but a legal conclusion, yet in the absence of a special demurrer or objection on that ground, it will be held *243
sufficient to authorize the court to receive evidence upon the issue; and if the parties proceed to trial without such objection and introduce evidence upon the issue they will not be permitted after a decision thereon to contend that it was not before the court for such decision (Minor v. Baldridge,
Upon these principles the finding herein that the board of supervisors did pass each and every resolution mentioned in the complaint is to be regarded as the finding of a fact. The finding is a negation in identical language of the allegation in the answer of the defendant. "The only purpose of findings is to answer the questions put by the pleadings; and if the facts are stated in the findings in the same way that they are stated in the pleadings they are sufficient." (Dam v. Zink,
The statement of the case was settled by the court and filed May 15, 1903. On September 16, 1904, the plaintiff gave notice to the defendant of a motion to dismiss the latter's motion for a new trial, upon the ground that he had failed to prosecute the same with diligence; and in support of such motion presented an affidavit, setting forth the dates at which the several steps in the proceeding prior thereto had been taken. Upon the hearing of the motion the attention of the court was called to the manner and times at which, under its rules, the motion could have been heard, and to the periods of time since the filing of the statement during which the court was in vacation. No fact in support of the motion to dismiss, or tending to show that the motion for a new trial could have been heard by the court, other than an inference to be drawn from the time that had intervened since the filing of the statement, was presented to the court. Upon the submission of the motion it was denied, and the plaintiff has also appealed from this order.
A motion of this nature is eminently addressed to the discretion of the court, and unless it shall be made to affirmatively appear that there has been an abuse of discretion its ruling thereon will be affirmed. In addition to the matters to which the attention of the court was called the judge had personal knowledge of the extent and manner in which the time of the court had been occupied during this period, and from such knowledge and his consideration thereof could determine whether there had been any negligence in the prosecution of the motion. In the absence of any definite showing that the motion could have been presented or heard at some time during this period, it cannot be held that the mere lapse of time *245 is a sufficient ground to overcome the presumption of the proper exercise of its discretion by the court. The orders appealed from are affirmed.
Hall, J., and Cooper, J., concurred.