City & County San Francisco v. Certain Real Estate

California Supreme Court Jan 15, 1872 No. No. 3,216Published

Before: Crockett

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Holding. The court held that the legislature had the authority to cure procedural defects in municipal street improvement proceedings, that the County Court's final judgment on assessment reports is not subject to collateral attack, and that the city was not contractually liable for assessments on property for improvements made to remote portions of a street.

Issues

Whether a judgment entered without opposition constitutes a consent judgment barring appeal.
Whether the legislature may retroactively validate municipal proceedings containing jurisdictional defects.
Whether a final judgment confirming an assessment report in County Court may be collaterally attacked.
Whether a statutory obligation to maintain a specific street segment creates a city liability for assessments on remote street improvements.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Doubtful clauses affecting the right of appeal should be liberally construed in favor of the right.”

“It was competent for the Legislature to cure any defects or omissions in the proceedings of the Board, or of the Superintendent of Streets.”

Synopsis

Judgment Unopposed not Necessarily a Consent Judgment. — A motion to dismiss an appeal on the ground that the judgment appealed from was entered by consent, cannot be sustained where the record, though it shows that no opposition was made, fails to show that appellant or his attorney was present in Court at its entry.

Presumption in Favor of Eight of Appeal.—Doubtful claims affecting the right of appeal should be liberally construed in favor of the right.

“ Second Street Cut ” in San Francisco—Defects in Proceedings Cured.—The amendatory Act of February 1st, 1870, ratifying and confirming all the orders and resolutions of the Board of Supervisors in reference to the “ Second Street Cut ” in San Francisco, and the proceedings of the Superintendent of Streets, and the contract, and all the acts and doings of the contractor under it (Stats. 1869-70, p. 41), cured an omission of the Supervisors to publish notice as required by the original Act authorizing the improvement. (Stats. 1867-8, p. 595.)

Street Improvements—Power of Legislature to Cure Defects in Proceedings.—In reference to proceedings of statutory creation for the improvement of certain streets in San Francisco; held, that it was competent for the Legislature, by subsequent enactment, to cure any defects or ' omissions in the proceedings of the Board of Supervisors or Superintendent of Streets.

Final Disposition op Objections to Oommissioners’ Report on “ Second Street Out.”—The Act of February 1st, 1870, in reference to the “ Second Street Out” in San Francisco (Stats. 1869-70, p. 41), in providing that the judgment of the County Court, either confirming or setting aside the report of the Commissioners, should be “final and conclusive,” obviously contemplated that all objections to the report, founded upon the errors, misconduct, irregularities, or omissions of the Commissioners, should be heard and determined by the County Court, and that it should not thereafter be open to attack in a collateral action.

Eppect op “Acceptance” op Street in San Francisco.—The only obligation imposed upon the City and County of San Francisco, by section twenty-one of the street law of 1862 (Stats. 1862, p. 391), if there be any, is to keep open and improved that portion of. the street constructed and “accepted” in accordance therewith; and there is no obligation on the part of the city and county to pay assessments upon property for benefits derived from the opening and improvement of other portions of the same street.

By the Court, Crockett, J.: It is objected, in limine, that we ought not to entertain this appeal, for the reason that the judgment from which the appeal was taken was entered pro forma and by consent. If the record disclosed this fact, it would be our duty to dismiss the appeal, as we have repeatedly decided that we will not review judgments or orders entered by consent. (Stoddard v. Treadwell, 29 Cal. 282; Sleeper v. Kelly, 22 Cal. 456; Coryell v. Cain, 16 Cal. 572; Brotherton v. Hart, 11 Cal. 405; Imley v. Beard, 6 Cal. 666.) The order in this case, directing a judgment to be entered for the plaintiff, after reciting that the plaintiff, upon due notice, moved for judgment, continues: “And no opposition being made thereto,” and then proceeds to direct a judgment to be entered for the plaintiff on the pleadings. If it had appeared from the record that the defendant’s attorney was present in Court when the motion was made and the order entered, it is certainly true that without straining the language employed in the order, it might well be held to mean that the defendant consented to the judgment. In that case the recital that he made no opposition to it might possibly, under certain circumstances, be held as equivalent to the statement that he consented to it. It is unnecessary, however, to express a positive opinion on this point, as the record does not show that the defendant’s attorney was present in Court, and if he did not appear to the motion there can be no inference ' that he consented to the judgment. If, however, he had been present, it may be that he was only passive and silent, and in that sense made no opposition to the judgment," choosing to stand on his legal rights, and leaving the Court to decide the question as it saw fit, without any suggestion from him. Doubtful clauses affecting the right of appeal should be liberally construed in favor of the right. I am, therefore, of opinion that we ought to entertain this appeal.

[519]Cue of the defenses set up in the answer is, that the Board of Supervisors omitted to publish a certain notice as required by the provisions of the Act of March 30th, 1868 (Stats. 1867-8, p. 595), and that the publication of this notice was a jurisdictional fact, without which the Board acquired no authority to let the contract and proceed with the work. But a conclusive answer to this defense is, that by section eleven of the amendatory Act of February 1st, 1870 (Stats. 1869-70, p. 41), it is provided that all the orders and resolutions of the Board of Supervisors, and the proceedings of the Superintendent of Streets, be, and they were thereby ratified and confirmed, and the contract and all the acts and doings of the contractor under it, were affirmed and declared to be valid.. The whole proceeding was of statutory creation, and “it was competent for the Legislature to cure any defects or omissions in the proceedings of the Board, or of the Superintendent of Streets.” This was done, and it is too late now to inquire whether the Board strictly pursued its original authority in its mode of initiating the work.

City & County San Francisco v. Certain Real Estate

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