Cummings v. Kearney

COOPER, C.—

This action was brought to enjoin the threatened sale of plaintiff's lot in the city of Santa Barbara for the amount due upon a bond owned by defendant Yndart, which was issued for street-work and improvements upon the

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lot now owned by plaintiff. Findings were filed, upon which judgment was entered for defendants. Plaintiff made a motion for a new trial, and this appeal is from the order-denying said motion.

As no appeal has been taken from the judgment, the sufficiency of the pleadings and of the judgment as being the 'legal conclusion from the facts found, cannot be questioned on this record.

The plaintiff’s counsel has devoted much of his brief, to a discussion of certain alleged irregularities and defects in the assessment, specifications, and contract under which the work was done. From the view we take of the case, it is not necessary to examine nor discuss the regularity of the proceedings by which the lien was created and- the bond issued. The property belonged to L. C. Cummings, the husband and predecessor in interest of plaintiff, at all times during the preliminary proceedings leading up to the improvements and issuance of the bond.

The court found: “That plaintiff by the conduct of herself and her predecessor waived any objection to the proceedings connected with said improvement and consented to and accepted and ratified said proceedings, and acquiesced in said improvements and received the benefit thereof, and the benefit received from the issuance of said bond; that plaintiff did not nor did her predecessor appeal to the said council at any time concerning the irregularity or invalidity of any of the proceedings, or in reference to any of the work performed, nor did either of them notify said city treasurer before the issuance of the bond referred to in the complaint, that it was her or his desire that no bond be issued, and the plaintiff has never paid or offered to pay the amount of such assessment or bond or any part thereof, and plaintiff is estopped by reason of said conduct from obtaining any equitable relief from this court in the premises, and no part of said assessment or bond has been paid by any person.” '

The above finding, so far as it is a finding of facts, and so far as it contains conclusions of law, is supported, by the evidence and the probative findings and is conclusive of the case.