Mulberry v. O'Dea

JAMES, J. (Pro tem).

Plaintiffs are severally the owners of parcels of real property in the city of Los Angeles against which liens are claimed under certain proceedings taken by the city for the improvement of Temple street. Defendant Tryon-Brain Company, a corporation, was the contractor, and performed the work of laying cement sidewalks and building cement curbs along certain portions of said street. Upon completion of the work the rights of defendant company under their contract were assigned to defendant O ’Dea. Certain irregularities in the proceedings taken by the city and alleged defects in the form of contract made with theTryon-Brain Company formed the basis for this suit, by which it was sought to have it adjudged that the assessments made-against the several pieces of property owned by plaintiffs to secure payment of the contract price for the doing of said work were void, and that no liens attached for the benefit of defendant contractor. A statement of facts was agreed upon in the lower court, and upon submission of the cause judgment was entered for plaintiffs and defendants have appealed.

The proceedings for the improvement of Temple street were taken under authority of the act of the legislature known commonly as the Yrooman act (Stats. 1885, p. 147), and acts amendatory thereof. Bespondents contend that at the time the city council attempted to order the work to be done it had not acquired jurisdiction, because twenty days.

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had not expired after the publication by the street superintendent of a notice of the intention to have the work performed, when the council adopted an ordinance directing the work to be done. The Yrooman act provides that after the resolution of intention has been passed and adopted by the city council, the street superintendent shall “cause a notice similar in substance to be published for six days in one or more daily newspapers published and circulated in said city . . .” and that “at the expiration of twenty days after the expiration of the time of said publication by said street superintendent . . . the city council shall be deemed to have acquired jurisdiction to order any of the work to be done, or improvement to be made, which is authorized by this act.” From the agreed statement of facts it appears that the street superintendent published the notice required of him to be published, in a daily newspaper for six days, commencing on April 9, 1903, and ending on April 15, 1903, one of the intervening days being Sunday. On May 4, 1903, the nineteenth day after the last day of publication of the notice by the street superintendent, the city council adopted an ordinance ordering the work to be done. This ordinance was signed by the mayor of the city on May 11, 1903, and published for two days thereafter, to wit, on May 13, and 14. 1903.