Bayside Land Co. v. Dolley

California Court of Appeal Jan 18, 1930 No. Docket No. 40.Published

Before: Marks

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Holding. The court held that while the board of trustees acted in a judicial capacity subject to review, the trial court erred in annulling the assessment because the street superintendent's erroneous method of calculating costs was not a jurisdictional defect reachable by a writ of review.

Issues

Whether the board of trustees acted in a judicial capacity subject to a writ of review.
Whether the failure to include specific lots in the initial resolution deprives the board of jurisdiction.
Whether an erroneous method of calculating assessment costs constitutes a jurisdictional defect subject to a writ of review.

Disposition. reversed

MARKS, J.

The appellant city of Seal Beach is a municipal corporation of the sixth class, situated within the county of Orange, state of California, and the other appellants composed its board of trustees, at all times material to this proceeding. Respondent is a corporation that owned about seven hundred lots within the city of Seal Beach, of which at least a large number were subjected to the assessment sought to be voided by the writ of review granted by the trial court herein. For convenience we will refer to the city of Seal Beach as the city, and the individual appellants as the board of trustees.

On April 7, 1927, the board of trustees passed a resolution whereby it instituted proceedings to abate noxious and dangerous weeds upon certain lots within the city, under an act of the legislature of the state of California approved May 26, 1915 (Stats. 1915, p. 841), -which we will refer to as the Weed Abatement Act. The proceedings were taken to the point of receiving the report and assessment of the street superintendent by the board of trustees, without objection on the part of property owners. Respondent filed its protest to this report and assessment, which, was overruled by the board of trustees, and the report and assessment were confirmed.

Respondent secured an alternative writ of review from the court below upon the ground that the board of trustees was without jurisdiction to confirm the assessment. Upon the return day fixed in the alternative writ appellants filed a general and special demurrer to the petition of respondent, which was overruled. Appellants declined to answer or make further return to the petition, and judgment was rendered against them directing a peremptory writ to issue annulling the assessment.

The record before us consists of the petition, demurrer, order overruling the demurrer, judgment, order for transcript and notice of appeal, besides affidavits of mailing. Where, as in this case, the record contains no formal return to the alternative writ, other than a demurrer,

[256]

it must be considered as adopting the allegations of the petition as a return and as a part of the judgment-roll

(Stoner

Bayside Land Co. v. Dolley

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MARKS, J.

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