Church v. Grady (1919) · DecisionDepot

Church v. Grady

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 7, 1919 No. Civ. No. 2656.Published

Before: Waste

AI Brief

AI-generated · verify before citing

Holding. The court held that the judgment for the plaintiff must be reversed because the plaintiff failed to provide any evidence of a demand for payment, which is a vital requirement under the governing ordinance and charter.

Issues

Whether the amended complaint sufficiently alleged the existence of the municipal ordinance.
Whether the complaint sufficiently alleged compliance with the ordinance regarding the resolution of the board of public works.
Whether the evidence supported the trial court's finding that a demand for payment was made as required by law.

Disposition. reversed

Quotations verified verbatim against the opinion

“The failure of plaintiff to prove a compliance with the essential requirement of the ordinance, respecting a demand, is fatal to the judgment.”

“There was, therefore, an utter failure of proof on a vital element in the case.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George E. Crothers, Judge. Reversed.

The facts are stated in the opinion of the court,

WASTE, P. J.

This is an action to foreclose a street assessment lien. The original complaint was apparently framed on the theory that the work was done under the authority of the charter of the city and county of San Francisco. At the trial plaintiffs admitted that the requirements of the charter, necessary to confer jurisdiction in such matters, had not been complied with.

The cause was submitted to the court for decision and was decided in favor of defendant. Thereupon, plaintiffs waived counsel fees and assumed defendant’s costs to that date. The court set aside the submission, and permitted plaintiffs to file amendments to their complaint, setting forth facts tending to establish that the proceedings were had under Ordinance No. 2439 (New Series) of the city and county of San Francisco, commonly known as the “Street Improvement Ordinance.” By stipulation of counsel said amendments were deemed denied by the answer of the defendant. No further evidence was introduced. The cause was resubmitted and decision and judgment went in favor of plaintiffs. Defendant made a motion for a new trial, one of the grounds being insufficiency of the evidence to justify the decision. The motion was denied. Defendant appeals, urging the same point as one of the grounds for a reversal of the judgment.

[1]

Whatever defects may have existed in the original complaint, the demurrer to which was overruled, that pleading was superseded by the complaint as amended after the trial. The sufficiency of the last pleading is alone in question.

(Rooney

Gray Bros.,

145 Cal. 753, [79 Pac. 523].) Appellant contends that the complaint, as amended, does not state facts sufficient to constitute a cause of action, by reason of a failure to properly allege the passage and existence of the ordinance of the city and county of San Francisco under which the plaintiff now contends the proceedings were taken.

[2]

It is a general rule, supported by unbroken authority in this state, that courts of record do not take judicial notice of municipal ordinances.

(Metteer

Smith,

156 Cal. 572,

Church v. Grady

AI Brief

Synopsis

WASTE, P. J.

More from California Court of Appeal

Related research

AI Brief