L. A. Paving Co. v. Los Angeles Foundry Co.

OLNEY, J.

This is an action to foreclose a street assessment lien on certain land of the defendant in the city of Vernon. The work was done under the Vrooman Act (Stats. 1885] p. 147, and subsequent amendments, General Laws of California, Act 3930). The lower court found, in brief, that the work has been dune and that all the proceedings were regular with the exception that an appeal by the defendant to the town trustees, duly taken after the issuance of the assessment warrant, had not been regularly passed upon and decided against the defendant. Upon these findings the court concluded1 that the action was prematurely brought and judgment was entered denying a foreclosure upon this ground, but adjudging, nevertheless, that the plaintiff had a lien upon the land subject to such action as the town trustees might take upon the defendant’s appeal to them. From this judgment the defendant appeals upon the judgment-roll alone, and its chief contention is that, since the court found that the action was prematurely brought, the judgment should have been simply one of dismissal, and that the portion which adjudges that the plaintiff had a lien subject to the disposition of the defendant’s appeal to the town trustees is erroneous.

The portion of the judgment complained of was inserted under section 121/4 of the act (Stats. 1913, p. 409), the material portion of which reads:

“It is hereby made the duty of any court of competent jurisdiction in rendering its judgment holding invalid any assessment t or assessments hereafter made or issued, ... to

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make a finding as to whether or not the issuing of such assessment was entirely without the power of the said city to issue, and if not, then what omission, irregularity, illegality, informality or noncomplianee with the requirements of the statute of which this is amendatory has occurred in the proceedings upon which said assessment or assessments and bonds rest, and what effect shaH.be given to them in making the reassessment.”

So far as we can see the judgment entered here corresponds to this statutory authority and requirement, and, in fact, it is not contended that it does not. It specifies the irregularity in the proceedings, namely, that the defendant’s appeal to the town trustees had not been disposed of, and then it specifies the effect which should be given to the proceedings taken, namely, that they created a lien upon the defendant’s property subject to the disposal of his appeal. That this was the true effect is plain from the statute. The appeal was taken after the work was completed and the warrant for the assessment had issued and been recorded-along with the other requisite papers in the office of the superintendent of streets in accordance with section 9 of the act. With such recording the assessment became a lien according to the express language of the act. The Hen was, of course, subject to the defendant’s right to appeal to the town trustees within the thirty days prescribed by the statute, and if an appeal was taken, subject to its final disposition. This is exactly what is declared by the judgment.