City Street Improvement Co. v. Rontet

McFARLAND, J.

This is an action to enforce the lien of .-a street assessment for $203.77 against a lot of defendant. -Judgment went for plaintiff; and from the judgment and from an order denying a motion for a new trial defendant . appeals.

The court found that all the averments of the complaint -were true, with the exception of changing a plural to a singular in the fifteenth finding; and that all the denials in the .answer were not true; and the complaint states a complete

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cause of action. The court also found that all the averments, of the answer and amendments thereto were untrue, except only the averments therein that the resolution of intention-under which respondent claims was duly passed, published, etc., and that the notice of street work was duly published and posted,—which averments were in the complaint. 'The-bill of exceptions on the motion for a new trial contains a number of specifications as to the insufficiency of the evidence, and as to errors of law occurring at the trial.

The main contention of appellant is, that the court, by its-, general findings, necessarily found as untrue the averment in the amendment to the answer that property-owners owning-the majority of frontage, etc., filed written protests against the doing of the street-work in question, and that such protests were allowed by the board of supervisors; and that the-evidence was insufficient to sustain such finding. The bill of exceptions consists mostly of matters touching these protests; but we do not deem it necessary to determine whether the findings as to them was justified by the evidence, because-the point is not material. The contention of appellant is, that, if such protests were in fact filed, the effect was not only to-suspend the work for six months, but to prevent any work at all thereafter without another resolution of intention to be-followed by entirely new proceedings,—which did not oecurin the case at bar. But the work involved here was simply-for a crossing at the intersection of two streets; and, as was. held in

City Street Imp. Co.

v.

Laird,

138 Cal. 27, the provision of the statute as to protests here invoked does not apply to such work.