Himmelman v. Danos

California Supreme Court Jul 1, 1868Published

Before: Sanderson

AI Brief

AI-generated · verify before citing

Holding. A complaint for street work must allege all statutory conditions precedent to liability, and a statutory lien is not created until the required assessment documents are officially recorded and authenticated by the officer's signature.

Issues

Whether a complaint for street work must allege the performance of all statutory conditions precedent to the defendant's liability.
Whether a statutory provision making assessment documents prima facie evidence of indebtedness excuses a plaintiff from pleading the performance of statutory conditions.
Whether an unsigned and unauthenticated copy of assessment documents constitutes a valid record sufficient to create a lien.

Disposition. reversed

Quotations verified verbatim against the opinion

“The provision in question does not establish a rule of pleading, but a rule of evidence only.”

Synopsis

Complaint to recover Street Assessment.—A complaint to recover the amount assessed on a lot in the City of San Francisco, for an improvement of the street on which the lot fronts, should show either by general or special averments a compliance by the Board of Supervisors with all the steps prescribed by law, to confer jurisdiction on the Board.

Liability for Street Improvement in San Francisco.—Unless all the provisions of the statute prior to the award of a contract for a street improvement in San Francisco are complied with, the defendant is not liable for the assessment.

Pleading and Evidence.—The thirteenth section of the statute in relation to street improvements in San Francisco, to the effect that the assessment, warrant, and diagram, with the affidavit of demand and non-payment, shall boprima facie evidence of the defendant's indebtedness, does not establish a rule of pleading, but a rule of evidence only.

Lien on Lot for Street Improvement.—Until the assessment, diagram, and warrant are recorded in the office of the Superintendent of Streets, in San Francisco, the contractor does not acquire a lien on a lot for work on the street.

Right to sue for Street Improvements.—The assessment, diagram, and warrant, for improvements on a street in San Francisco must be recorded before the demand of payment and return of the same by affidavit, or a failure to pay the assessment confers no right of action on the contractor.

Certificate to Record of Street Assessment.—When the assessment, diagram and warrant, and sworn return of demand of payment for a street improvement in San Francisco are recorded in the office of the Superintendent of Streets, a certificate of their recording should be attached to the same, signed by the Superintendent. Without such certificate, the record is valueless. Whether such certificate should be affixed to the separate record of the assessment, diagram, and warrant, not decided.

By the Court, Sanderson, J.: The complaint commences with an averment that the Board of Supervisors, on the 12th of February, 1866, awarded the contract under which the street work in question was done, to one Kenney, assignor of the plaintiff. Hone of the precedent steps which the statute prescribes are generally or specially alleged; or, in other words, the facts conferring jurisdiction upon the Board are not stated. The complaint is silent as to the notice of intention, and as to all steps which, following the course of the statute, precede the awarding of the contract. The several steps, however, which follow the award are alleged either specially or generally. It is insisted on the part of the defendant that for these reasons the complaint fails to state a cause of action. We consider the point well taken.

If, admitting all the facts stated to be true, the liability of the defendant does not follow as a legal conclusion, the complaint is bad. This is true of every complaint, regardless of the subject matter. The performance of all conditions which are precedent to the liability of the defendant, whether founded upon a contract or a statute, must be alleged in some [448]form, either general or special. In actions upon contracts, a general allegation of performance of conditions precedent is declared sufficient by our statute. (Practice Act, Sec. 60.) But a general allegation of the performance of conditions prescribed by a statute has not been so declared, and is not, therefore, sufficient. (Dye v. Dye, 11 Cal. 163; People v. Jackson, 24 Cal. 680.)

The same rule prevails as to judgments and determinations of Courts, tribunals, Boards, and officers of inferior or special jurisdiction. ■ In favor of such the law intends nothing; hence, if the liability of the defendant depends upon them, the facts conferring jurisdiction must be specially alleged at common law; but under our statute, an allegation that the judgment or determination was duly given or made is declared sufficient. (Practice Act, Sec. 59.)

In the present case the liability of the defendant depends upon the performance of the several steps enumerated in the statute by the officers of the city Government. The complaint must show, by either special or general averments, of the character permitted by our statute, that the various provisions of the statute under which it is sought to charge the defendant were complied with, for, unless they have been complied with, the defendant is not liable. (Blanchard v. Beideman, 18 Cal. 262.) According to the mode of procedure prescribed by the statute, the award of the contract is not the first step to be taken by the Board of Supervisors, yet the complaint is entirely silent as to all previous steps. In relation to them there is no allegation either special or general. If they were not taken, the Board had no power to award the contract, and hence no liability was cast by it or the subsequent steps, however regular they may have been upon the defendant. In short, the liability of the defendant cannot be affirmed in view of the facts stated, and for that reason the complaint is defective.

Himmelman v. Danos

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief