Greenwood v. Chandon

CHIPMAN, C.

Action to foreclose a street assessment lien upon defendants’ lands in San Francisco, for the work of grading the center roadway of Army street, from Pennsylvania ave

[468]

nue to Kentucky street, to a width of twenty-three feet. Judgment was entered for plaintiff, motion for new trial denied, and this appeal is from the judgment and order. An order was-made by the trial judge substituting the executors of plaintiff in his stead, but the original title of the cause is retained. It is stipulated that like appeals in two other cases—S. F. No. 1712 and S. F. No. 1713—between the same parties as to the same work, may he heard on this transcript and may follow the result in this appeal.

The court found as follows: “Said warrant, assessment, diagram, and surveyor’s certificate were duly recorded by said superintendent, in the office of said superintendent, on the date last aforesaid, in volume 97, page 50, of the assessment records, and the record thereof was duly signed by said superintendent. That the certificate of the said city and county surveyor relating to said work was also duly recorded by said superintendent in his office at the time of issuing said assessment.” The appeal rests upon the claim that the evidence is insufficient to justify the above findings, and the point urged is that the engineer’s certificate was not recorded with the assessment, warrant, and diagram so as to make the assessment a lien as required by section 9 of the general street law. (Stats. 1889, p. 167.)

The transcript shows as follows: “Plaintiffs introduced in evidence the original assessment, warrant, diagram, and engineer’s certificate, and affidavit of demand and nonpayment, all in due form.” With this, and evidence of the assignment of the contract to plaintiffs, they rested. Upon the point in question the record made by defendants shows as follows: “Defendants also caused to be produced from the office of the superintendent of streets, and introduced in evidence, the only alleged record in said office of the said assessment, engineer’s certificate, diagram, and warrant, all of which appeared to have been written, in the order above mentioned, in a book kept in said office. At the end of the foregoing alleged record was written a certificate by the street superintendent as follows: ‘The foregoing, on page Ho. 50, is a tru'e and correct record of assessment, diagram, and warrant, recorded and issued this second day of July, A. D. 1895. Thomas Ashworth, superintendent of public streets, highways, and squares.’ The foregoing was the only alleged