Williamson v. Joyce (1903) · DecisionDepot

Williamson v. Joyce

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 17, 1903 No. Sac. No. 982.Published

Before: Shaw

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Holding. The court held that the demurrer was properly sustained because the lien had expired and the complaint failed to state a cause of action, and that the plaintiff could not challenge the denial of leave to amend without having requested such leave or proposed a valid amendment.

Issues

Whether the complaint stated a cause of action for the foreclosure of a street assessment lien.
Whether the trial court erred in sustaining a demurrer without leave to amend when the plaintiff failed to request such leave.
Whether the court erred in entering judgment on the demurrer while issues remained regarding a cross-complaint filed by another defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The party cannot object in this court that he is not permitted to amend by the court below when he made no application there to be allowed to do so.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

This is an action to foreclose- the lien of a street assessment. Alfred Joyce, one of the defendants, demurred to the complaint upon the ground that it did not state a cause of action, and in particular that it appeared upon the face of the complaint that the lien had expired before the action was begun. The demurrer was sustained without leave-to amend. Fourteen days thereafter, the plaintiff having made no application for leave to amend, and notice of the order overruling the demurrer having been in the mean time served upon him, the court entered judgment upon the demurrer that the plaintiff take nothing by reason of the action as against the defendant Joyce, and that Joyce recover his costs. From this judgment the plaintiff appeals.

There can be no question that the complaint was insufficient, and that the demurrer was properly sustained. Section 9 of the Street Improvement Act declares that the amounts assessed for improvements shall be a lien upon the lands assessed for the period of two years from the date of recording the warrant, assessment, diagram, and certificate. The complaint alleges that this occurred on March 17, 1898. The complaint was filed on April 13, 1900, more than two years thereafter. Furthermore, the resolution of intention as set forth in the complaint shows that the -improvement in question consisted of lateral sewers, to be constructed on certain named streets in the city of Stockton, and branch sewers to be laid from the said lateral sewers to the curb-lines on each side, and manholes to be constructed at each of the terminations of the lateral sewers and at certain street intersections. It fails, however, to state, either directly, or by inference, the material of which either of the sewers or the manholes should be constructed; nor does it mention the size of either, or the number of branch sewers to be constructed to the curb-line. These defects would make the resolution of intention void

[671]

under the decisions in

Schwiesau

Mahon,

128 Cal. 114, and

Fay

Williamson v. Joyce

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Synopsis

SHAW, J.

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