222 P. 168 | Cal. Ct. App. | 1923
The plaintiff and appellant in this action is the owner and holder of a certain street improvement bond number 5, series number 2 of the city of Visalia, of the par value of $117.76, bearing interest at the rate of eight per cent per annum, issued by the city of Visalia, on the twelfth day of April, 1911, covering street improvement work in the city of Visalia under the provisions of an act providing a system of street improvement and issuance of bonds therefor, approved February 27, 1893. The bond in question was given to cover the expenses for street improvement chargeable to lot number 5 of block number 92 in the city of Visalia. The term of the bond was fixed at five years. It was further provided that an even annual proportion of the whole amount due should become payable on the second day of January of each year after date until the whole bond should be paid with all accrued interest. Interest coupon called for semi-annual payment. The bond further provided that should default be made in the annual payment upon the principal or in any payment of interest the holder of said bond should be entitled to declare the whole amount remaining unpaid due and payable and to have said lot advertised and sold as provided by law. Only one payment was ever made on said bond, to wit, the sum of $23.55, covering interest from the twelfth day of April, 1911, until the second day of January, 1912. On the sixteenth day of May, 1922, the plaintiff demanded in writing that the city treasurer, the defendant in this action, proceed to advertise and sell said lot and apply the proceeds of such sale toward the payment of the principal and interest due on the bond held by the plaintiff. The defendant refused to comply with the demand of the plaintiff and thereupon the plaintiff filed her complaint herein praying for an order of the court directing and commanding the defendant to make sale of said property or to show cause upon a certain date why a writ of mandate should not be issued compelling him so to do. *435
To the plaintiff's petition the defendant demurred on the ground that the plaintiff's cause of action was barred by the provisions of sections
The judgment itself bearing the signature of the trial court is as follows:
"Whereas this cause was regularly heard by the court on the 5th day of June, 1922, upon the issues of law made and joined by plaintiff's petition for writ of mandate and the defendant's demurrer thereto, and whereas the court by its order duly made and entered upon the minutes on said 5th day of June, 1922, sustained the said defendant's demurrer on the ground that it appears on the face of said petition that the cause of action sought to be alleged therein is barred by the provisions of sections
"Now, therefore, it is ordered by the court that the said cause be, and the same is hereby dismissed."
The minute order referred to in the judgment recites that the demurrer of the defendant to plaintiff's petition *436
having come on regularly for hearing, etc., the court proceeded to hear the same and then made its order as recited in the judgment. The minute order is no part of the judgment-roll (seeDe Pedrorena v. Hotchkiss,
[2] Outside of the judgment itself there is no other evidence of the date of filing of the defendant's demurrer. The judgment itself recites the fact of filing, and there being nothing to contradict such recital it will be presumed to be correct. This principle was enunciated in the early case of Hahn v. Kelly,
This is a direct attack upon the judgment, but in the absence of any showing as to what the true facts are the judgment and its recitals will be presumed to be correct. (Kahn v. Matthai,
[3] Has the statute of limitations run in this case? Section 4 of the act of 1893, in accordance with which the bond in this case was issued, contains the following provision:
"The assessment shall be a first lien upon the property affected thereby, until the bond issued for the payment thereof, and the accrued interest thereon, shall be fully paid." (Stats. 1893, p. 36.)
Relying upon this provision of section 4 of the act of 1893 and the case of Lantz v. Fishburn,
The rule established in this state, however, makes a distinction between the existence of a right and the exercise of a remedy. In other words, a person may be possessed of a right and by reason of inaction or failure to proceed lose his remedy. The provision of section 4 of the act referred to is very similar in purpose and expression to section 3716 of the Political Code relating to liens created by taxes. That section reads:
"Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof."
The right of a city or county or state to its taxes under this section would seem to be extinguishable only by actual payment, and such seems to be the rule. But the existence of the remedy has no such indefinite period of time and is not made to rest upon the fact of actual payment. The leading case upon this question and the one followed by the supreme court of this state is that of the State of Nevada v. Yellow JacketSilver Min. Co.,
"Under these and other provisions of the Political Code no action is necessary to collect a valid tax. But it is claimed that these provisions take the case of an action under the statute to recover a tax out of the statute of limitations. In the case already cited the supreme court of Nevada, on a similar statute, decided otherwise, and we think correctly. . . . The lien is but an incident to the tax — the money due — and, like the case of a mortgage, when *439 an action to recover the debt is barred, the suit to enforce the lien is also barred. This has long been the settled doctrine in this state in relation to a mortgage. Neither the debt nor the lien is extinguished in the case of a mortgage, in any other sense than in the case of a tax, and the statutory lien incident to it. The remedy by action is barred, whatever the case may be as to other remedies. . . . We see no good reason, at this day, and under our laws for the levy and collection of taxes, for allowing the state to vex parties with suits for taxes after the lapse of many years that is not equally applicable to private parties. The state has officers specially appointed to attend to these particular duties, and no others, and if they neglect their duties the state which appoints them, if anyone, should be the party to suffer."
The case of San Diego City v. Higgins was followed by the case of Barnes v. Glide,
The transcript shows that more than six years elapsed after the maturity of the bond upon which this action is based and the date of making demand upon the treasurer of the city of Visalia for sale of the property upon which the bond constituted a lien and also before the beginning of this action. Under the authorities which we have cited there is but one conclusion to be reached. The statute of limitations had run at the time of the institution of the plaintiff's action, and even though the lien for the amount of the bond may still exist upon the property the remedy by mandamus to enforce sale is now barred by the provisions of the code to which we have referred.
The judgment of the trial court is hereby affirmed.
Finch, P. J., and Hart, J., concurred.