Hutton v. Newhouse

RICHARDS, J.

This is an appeal from a judgment in the plaintiff’s favor in an action to foreclose a lien for the 'improvement of a street intersection in the city and county of San Francisco, under the provisions of the ordinance providing for such improvements, pursuant to the terms of section 33, chapter 2, article VI of the charter of said municipality. The appellant urges several points upon appeal. *

[1]

The first of these is that the complaint was fatally defective in the respect that the street improvement ordinance relied upon was not sufficiently- pleaded. No demurrer was presented to said complaint; no objection was made to the admission in evidence of the ordinance in

[691]

question. The objection to the sufficiency of the pleading in respect to the passage and approval of said ordinance is for the first time made upon appeal. The belated objection is that the ordinance is pleaded as to its passage, approval, and existence by recital instead of directly. The objection comes too late. It should have been made by special demurrer, and not having been so made must be held to have been waived.

(City of Santa Barbara

v.

Elred,

108 Cal. 294, [41 Pac. 410];

Wells Fargo & Co.

v.

McCarthy,

5 Cal. App. 312, [90 Pac. 203].)

[2]

The appellant’s next contention is that the judgment must be reversed, because there are no findings in the record, and because the -record fails to show that findings were waived. The statement of this point embraces its own answer. When the record presents a judgment without findings the presumption in its favor is that findings were waived. This presumption the appellant must overthrow by embracing in his record on appeal, an affirmative showing by bill of exceptions, statement, or other appropriate method, that findings were not waived.