Sammon v. Wing

FINCH, P. J.

This is an action to foreclose the lien of a street improvement bond issued by the city of Santa Monica in the year 1926 under the Improvement Act of 1911 (Stats. 1911, p. 730). The action was commenced September 6, 1927. Judgment was entered in favor of the plaintiff for the relief demanded, except that nothing was allowed as attorney’s fee for the prosecution of the action, the plaintiff having made no demand for payment of the bond upon the owner or his agent prior to the commencement of the action. The plaintiff has appealed from the judgment. There is no dispute as to the facts and the sole question presented by the appeal is whether, under the conceded facts, the plaintiff is entitled to recover any attorney’s fee. At the time the bond was issued section 27, included in part I of the act, provided for a suit by the contractor or his assignee against the owner of land assessed for an improvement to recover the amount of any delinquent assessment. That section further provided:

“And in all eases recovery under the provisions of this act, where personal demand has been made upon the owner or his agent, but not otherwise, the plaintiff shall recover such sum as the court may fix, in addition to the taxable cost as attorney’s fees. . . . And when suit has been brought after a personal demand has been made, and refusal to pay such

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assessment so demanded, the plaintiff shall be entitled to have and recover such attorney’s fees as the court may deem reasonable, in addition to all taxable costs, notwithstanding that the suit may be settled or a tender may be made before a recovery in said action.” (Stats. 1923, p. 117, sec. 6.)

Part III of the act (section 59) authorizes the city council of a municipality to provide for the issuance of serial bonds “to represent assessments of twenty-five dollars or over for the cost of any work or improvement authorized in Part I of this act, ’ ’ and provides for the payment of any such bond by the property owner to the city treasurer and for the sale by the treasurer of the land upon which the bond is a lien, in case of default in payment thereof, upon the demand of the holder of the bond. Section 76, in part III, then read as follows:

“In the event of the nonpayment of any installment of the interest or principal and by way of a separate, distinct and cumulative remedy, the holder of any bond upon which any payment either upon the principal or of the interest has not, or shall not be made when due, may file and maintain a suit to foreclose the lien of the bond in the same manner provided in this act for the foreclosure of the lien of delinquent assessments. . . . The court shall also fix and allow a reasonable attorney’s fee for the prosecution of said suit. . . . Such action shall be governed and regulated by the provisions hereof, and also when not in conflict herewith, by the codes of this state.” (Stats. 1921, p. 297, sec. 10.)