County of Sutter v. McGriff
Before: Henshaw
Synopsis
Action by County—Pleading—Style of'Name—Certainty.—An action by a county is properly brought by styling the name of the plaintiff as “The county of” the name specified; and the complaint is not subject to a demurrer for uncertainty in so styling the county plaintiff.
Id.—Causes of Action not Separately Stated—Demurrer—Motion.— That several causes of action are not separately stated in the complaint is not ground of demurrer, but the objection should be taken advantage of by motion that they be severed and separately pleaded.
Id.—Sufficiency of Finding—Reference to Complaint.—A finding that all of the allegations of the complaint are true is a sufficient finding upon the issues raised thereupon.
Id.—Action to Condemn Lands for Highway—Evidence—Prima Facie Case—Oath of Viewers—Burden of Proof.—In an action by a county to condemn lands for a public highway, if a prima facie case is made by the requisite evidence in proper form, it is not incumbent upon the county in the first instance to prove that the viewers took the required oatli for the faithful discharge of their duties, but the burden is upon the defendant to disprove it.
Id.—Order Setting Apart Damages Assessed—Designation of Fund. An order by the supervisors that the amount of damages assessed and awarded be set apart in the treasury of the county “out of the proper fund,” to he paid in accordance with the law, is sufficient. It need not specify the particular fund from which the moneys were to he drawn.
Id.—Compliance With Order—Proof Essential—Presumption.—The county must prove compliance with the order of the supervisors by the treasurer, and that the moneys awarded as damages were in fact sequestered in the treasury, and were available for compensating the owners of the land; and the absence of such proof cannot be supplied by a presumption that official duty was regularly performed.
Id.—Tender of Compensation—Compliance With Law — Failure of Proof.—The requisites of the tender of compensation prescribed by the law must be strictly complied with; and in the absence of proof of compliance by the treasurer with the order of the supervisors it must be held that the county failed to make its tender and to keep it good.
HENSHAW, J.
This action was brought by the county of Sutter to condemn certain lands for a public highway, after statutory proceedings had before the board of supervisors. The cause was tried without a jury, judgment passed for plaintiff, and from the order denying them a new trial defendants appeal.
Most of the propositions which they present in support of their appeal may be briefly disposed of.
1. The demurrer to the complaint for uncertainty and unintelligibility was properly overruled. This demurrer was based upon the ground that the complaint charges in the name of “The county of Sutter,” when there is no political subdivision of the state bearing such designation, and the true and only name of the county is “Sutter.” But as article VI, section 6, of the constitution of the state names “The counties of Yuba and Sutter,” and as certificates of acknowledgment under section 1189 of the Civil Code are expressly required to state the venue, as “state of -, county of -,” it would seem that this contention does not even merit the notice which has thus been given it.
[126]
2.
That the causes of action were not separately stated in the complaint was not ground of demurrer, but should have been taken advantage of by motion to sever and separately plead them.
(Fraser v. Oakdale Lumber etc. Co.,
73 Cal. 188;
Bernero v. South British and Nat. Ins. Co.,
65 Cal. 386;
City Carpet etc. Works v. Jones,
102 Cal. 506, 510.)
3. The court found that all of the allegations of the complaint were true. This was a sufficient finding upon the issues.
(Moore v. Clear Lake Water Works,
68 Cal. 146.)
4. The description of the land sought to be condemned, set forth in the complaint and in the findings of the court, was sufficiently explicit.
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