District Bond Co. v. Cannon

WOOD, J.

Petitioner seeks by writ of mandate to compel defendant, the treasurer of the city of Montebello, a city of the sixth class, to pay to it the entire balance in her custody of the interest and sinking fund of a district organized under the provisions of the Acquisition and Improvement Act of 1925, notwithstanding the insufficiency of the fund to pay all of the matured bonds. The appeal is by the defendant from a judgment in petitioner’s favor.

[661]

It is alleged in the petition, which was filed March 7, 1935, that petitioner is the owner of ten series A Acquisition and Improvement District No. 6 bonds of the city of Montebello, numbered 18 to 27, inclusive, each of said bonds being in the principal sum of $1,000, and all of which became due and payable February 5, 1935. Petitioner presented these bonds to the defendant at her office on the due date thereof but payment was refused. At the time of filing the petition there was in the interest and sinking fund of the district the sum of $61.09 only. On April 27, 1936, a supplemental petition was filed in which it is alleged that the interest and sinking fund had been augmented.

In defendant’s answer it is alleged that on February 5,1929, bonds were issued in the aggregate amount of $251,246, bearing interest payable semiannually. These bonds were numbered 1 to 252, inclusive, each of which being in the principal sum of $1,000 except bond No. 252, which was issued in the sum of $246. Bonds Nos. 1 to 17, inclusive, became due February 5, 1934, and annually thereafter 17 other bonds became or will become due. Bonds Nos. 7 to 13, inclusive, which matured February 5, 1934, were paid on February 5, 1934; bond No. 14, due February 5, 1934, was paid April 23, 1934; bond No. 15 due February 5, 1934, was paid May 25, 1934, and bond No. 16, due February 5, 1934, was paid January 16, 1935. Bonds Nos. 1 to 6, inclusive, and 17, which became due February 5, 1934, and bonds Nos. 18 to 34, inclusive, which became due February 5, 1935, were not paid because of lack of funds in the interest and sinking fund. Bonds Nos. 35 to 51, inclusive, became due February 5, 1936. The total sum of $77,915.83 was past due and unpaid on principal and interest before the trial of the action. In the findings, which were dated November 13, 1936, the trial court found that the sum of $61.09 had since the filing of the petition been increased to the total sum of $9,845.20. Defendant set forth in her answer the details of the bonds outstanding and unpaid and of the demands made upon her for payment by the owners of other bonds, some of which were past due, including a demand made February 7, 1934, by the owner of bonds Nos. 1 to 6, inclusive. Defendant further set forth in answer that the land within this improvement district is also subject to the liens of and is encumbered by certain other special assessments, street improvement bonds and general county and municipal taxes in the approximate sum of $600,000,