Blatner v. Davis

By the Court, Currey, C. J.: This action was brought to recover the amount of an assessment against a certain lot in the City of San Francisco for work done in the performance of a street • contract. Issue being joined between the parties named, the cause was tried by the Court and a judgment rendered against the defendant, from which he appealed directly to this Court, relying upon the judgment roll alone as disclosing errors of law demanding a reversal of the judgment.

Upon the facts stated in the complaint, which the Court found to be true in substance, the appellant maintained that he, instead of the plaintiff, was and is entitled to judgment. The action, in form, is against the appellant and one J. P.. Schaffer, and it is charged in the complaint that after the work,, for which the plaintiff claims to be entitled to compensation, according to the terms of his contract with the Superintendent of Streets, was done, the Superintendent approved of the-same, and thereupon made a diagram exhibiting the premises upon and adjoining which the work had been done, and each [330]lot liable to be assessed and charged' therefor, and also prepared an assessment list, showing the amount and rate to be paid upon the contract, specifying the amount of each assessment, with the name of the owner or owners of the particular property assessed, “ so far as known; ” which diagram and assessment was duly recorded in the office of the Superintendent of Streets. The plaintiff then states that from the inception of the proceedings instituted and had, until the commencement of the action, the defendants had been and still were the owners of the lot described in the complaint; and then it is further alleged “ that said lot of land is, by said assessment aforesaid, assessed to said J. P. Schaffer.” The finding of the Court upon this point is, that the lot described was “ assessed to said J. P. Schaffer in the said assessment.” The tenth section of the Act of 1862 (Laws 1862, p. 397) provides that to the assessment shall be attached a warrant which shall be signed by the Superintendent and countersigned by the Auditor of the city and county, authorizing and empowering the contractor, his agent or assigns to demand and receive the “ several assessments upon the assessment and diagram ;” which warrant, assessment and diagram shall be recorded ; and then it is declared that “ when so recorded, the several amounts assessed shall be a lien upon the lands, lots or portion of lots assessed respectively, for the period of two years from the date of said recording, unless sooner discharged.” The thirteenth section of the Act authorizes the contractor or his assigns, after a certain period, to sue in his own name “ the owner of the land, lots or portions of lots assessed, oh the day of the recording of the warrant, assessment and diagram, or on any day thereafter during the continuance of the lien of said assessment, and to recover the amount of any assessment remaining due and unpaid;” and the samé section provides that “ the Court in which suit shall be commenced shall have power to adjudge and decree a lien against the premises assessed, and to order such premises to be sold on execution, as in other cases of sale of real estate by process of said Courts.” By reference to the statute it will