Crouse v. Barrows

LORIGAN, J.

The defendants appeal from a judgment foreclosing a street assessment, on their property.

The only point to be considered is whether the general demurrer interposed by defendants to the complaint should have been sustained, the trial court having overruled it.

The complaint alleged “that on the 14th day of August, 1905, at the city of San Diego, state of California, the common council of said city duly passed and adopted a resolution of intention, in writing, wherein and whereby said common council duly resolved and determined that it was the intention of .said council to order the following described street work to be done in said city, to wit: ‘To sidewalk and curb .Date Street on both sides thereof, in the City of San Diego,

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California, from the east line of Front Street to the west line of Fifth Street.’ ”

Immediately following it is alleged: “That thereafter, to wit: On the 2nd day of October, 1905, at said city of San Diego, said common council, deeming that the public interest and convenience required it, duly passed and adopted a resolution, in writing, wherein and whereby said common council duly gave and made its order and determination in writing, ordering said work to be done.”

It is insisted by appellants that the complaint is radically defective because the description of the work to be done set forth in the resolution of intention referred to in the first-quoted allegation is not such a description of the work as is required by section 3 of the Street Improvement Act. This point is well taken. The act requires that the resolution of intention shall contain a description of the work, and all that appears in the resolution of intention is that it is the intention of the common council "to sidewalk .and curb Date Street” on both sides between certain streets. There is no specification of the character of the materials to be used in laying the sidewalks, nor of what materials the curb shall be constructed, and a resolution which fails to make specifications of that character is void, and a complaint which sets forth a resolution of intention which is deficient in those particulars states no cause of action.