Ransome-Crummey Co. v. Fikes

KERRIGAN, J.

This action was brought to foreclose the lien of a street assessment for certain street work done under a freeholders’ charter amounting to the sum of $304.39. The work performed was for the improvement of Santa Clara Street, in the city of San Jose. Judgment was in favor of defendants, and plaintiff appeals.

The record on appeal consists of the judgment-roll, together with a stipulation to the effect that the original complaint, which is omitted from the record, is identical with the amended complaint except as to the date of filing, and that it lacks the recitals as to the affidavit concerning non-collusion and noncollateral agreements found in the amended complaint and which are required to be filed before an assessment can be issued.

The complaint contains eight paragraphs, the first six of which in substance allege the various steps taken from the adoption of the resolution of intention down to and including the return of the warrant, resulting in the assessment-roll. It is alleged that the resolution of intention to order the work done was adopted in February, 1910, and that the contract, entered into on April 29, 1910, provided for the completion of the work within sixty days. It is next recited that the warrant, assessment, diagram, and certificate of engineer were recorded on September 17, 1910, and that the warrant was returned on October 5, 1912. Then follow allegations to the effect that the work was done according to the contract. Paragraph 7 contains allegations as to fictitious defendants, and the eighth and last paragraph of the complaint zvers that defendants should be estopped from objecting to the proceedings or to the doing of the work by plaintiff. The answer contains seven paragraphs. The first is a general denial, and the succeeding five paragraphs contain affirmative matter

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relating to alleged insufficiency of the posting of notice, collusion, and insufficiency of the bond. The seventh and last paragraph of the answer alleges that the work mentioned in plaintiff’s complaint was done upon an accepted street. The trial court found all the allegations of paragraphs 1 to 6 of plaintiff’s complaint to be true. This included every allegation in the complaint except the seventh referring to the fictitious defendants, and the eighth as to the claimed estoppel. As to these the court found that they were not true. It further found that none of the matters set forth in the defendants’ answer were true except that contained in paragraph 7 in regard to the acceptance of the street. With reference to this paragraph the court found in substance as follows: That on the eleventh day of November, 1889, the mayor and common council of the city of San Jose found and decided that Bast Santa Clara Street from Main Street to the Coyote River had been fully constructed, repaired, and improved, and that said mayor and common council then and there passed an ordinance accepting said street, and that such ordinance had never been repealed or modified, and was at the time of the doing of the work mentioned in plaintiff’s complaint in full force and effect, and that the work was done upon a portion of said street accepted by the ordinance. In conformity therewith final judgment was entered in favor of defendants.