Himmelman v. Carpentier

47 Cal. 42

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 3,593
• Status: Published

Opinion

By the Court, Belcher, J.:

This is an action to recover a street assessment for grading a portion of Fillmore street, in the city of San Francisco. The plaintiff recovered judgment, and the appeal is from the judgment and an order denying a motion for a new trial.

The first point presented by the appellant is that the lien of the assessment had expired by limitation before the trial, and the court had no power to render the judgment after the expiration of the lien. The assessment, warrant and diagram were recorded November 27th, 1868, the action was commenced within two years, and the judgment was rendered September 22d, 1871. The same point was made in Randolph v. Bayue, 44 Cal. 366, and decided against the views of the appellant. Upon the authority of that case, we hold that the contractor did not lose his lien because the judgment was not rendered within two years after the recording of the assessment.

The next point is, that at the time of the trial the assessment, warrant, diagram and affidavit of demand and nonpayment did not constitute proof of the prior proceedings, and that no other evidence was offered by the plaintiff. The argument is, that section 4 of the Act of March 26th, 1868 (Statutes 1867-8, p. 363), which made the warrant, assessment and diagram, with the affidavit of demand and non-payment, prima facie evidence of the indebtedness and of the right of the plaintiff to recover in the action, was repealed when that section was amended by the Act of April 4th, 1870 (Statutes 1869-70, p. 898), and the plaintiff, in order to establish his right to recover, was therefore required to make common law proof of all the necessary prior proceedings. We do not agree with the appellants in their construction of the Act of 1869-70. This act made some important changes in the street assessment law of San Francisco, but it did not, we think, accomplish all that is claimed for it. Undoubtedly it was competent for the Legislature to change the rule of evidence theretofore provided, and to some extent it did change it, but it substituted another rule quite as favorable for the plaintiff. Among other things, the act provided that actions for the collection of delinquent street assessments should be brought by the Assistant City and County Attorney, in the name of the people of the city and county, and that “ said assessment or assessments, or the original record thereof, shall be prima facie evidence of plaintiff’s right to recover in the action.” It further provided that “in all suits now pending, or hereafter to be brought to recover street assessments, the proceedings therein shall be general [governed] and regulated by the provisions of this act.” It also declared that the act should be liberally construed to carry out the intentions and purposes of the act. We are satisfied that it was the intention of the Legislature to make the assessments, or the original record thereof, prima facie evidence of the plaintiff’s right to recover in all actions then pending or thereafter to be brought, and that the act must be so construed as to effect that end.

The third, fourth and fifth points relate to the notice inviting sealed proposals, and are in substance: First, that the notice called for grading the roadway one foot below the official grade, which was more work than the Board had acquired jurisdiction to do; and second, that the notice was not posted five days. The answers to these objections are obvious and conclusive.

First, the case shows that there were two notices inviting sealed proposals, under the second of which the award was made. That notice is not set out in the record, and it does not appear whether it invited proposals to grade to the official grade, or one foot below the official grade.

Second, the prima facie case made by the plaintiff was not overcome by proving that the first notice was not posted five days. The award having been made in pursuance of the second notice, the first was properly disregarded by the Court. Its production neither proved nor tended to prove any issue in the case.

Judgment and order affirmed.