Dyer v. North
Before: Belcher
Synopsis
Waiver oe Summons—Appearance.—A notice, signed by attorneys, and filed with the Cleric after a complaint has been filed, stating that “ we have been retained by, and hereby appear for, the above named defendant, in the above entitled action,” is a sufficient appearance of the defendant, and is a waiver of summons; and judgment by default may be entered, if pleadings are not filed in the proper time.
Pleading in Street Assessment Case.—In an action to recover a street assessment in San Francisco, an averment that a resolution to do the work was passed by the Board of Supervisors, and that the resolution was signed by the Clerk, and published ten days (Sundays excepted) in the official newspaper, is sufficient to support a judgment by default, or to authorize proof that the Board directed the resolution to be published.
Publication oe Notice to Improve Street.—The question reserved, whether the Board of Supervisors of San Francisco should order the publication of a resolution of intention to improve a street, or whether it may be published without such order.
Plaintiee, in Action to Recover Street Assessment.—An action to recover an assessment for improving a street in San Francisco should be brought in the name of the contractor, and not in the name of the city.
Jurisdiction to Order Street Improvement in San Francisco.—The Board of Supervisors of the City and County of San Francisco has jurisdiction to order a street to be graded in any part of the city, without a petition first presented for that purpose, except when it is proposed to partially improve or grade a street west of Larkin street, without reference to its official width or grade.
By the Court, Belcher, J.: This is an action to recover a street assessment in the City of San Francisco.
The plaintiff took judgment by default and the defendant has appealed.
The first point made is that the Court never acquired jurisdiction of the person of the defendant, because no summons was issued upon the complaint. On the same day that the complaint was filed, the attorneys, who appear for the appellant in this Court, filed in the action a notice that “ we have been retained by, and hereby appear for, the above named defendant in the above entitled action.”
[160]This was a sufficient appearance, and was a waiver of summons. (Practice Act, Sec. 22.)
It is next objected that the complaint does not state facts sufficient to constitute a cause of action, nor to sustain a decree based thereon, because it does not appear from tire complaint that the publication of the first resolution or notice of the intention of the Board to order the improvements to be made was by the authority of the Board.
The statute (Acts 1863, p. 525,) authorizes the Board of Supervisors to order work to be done “ after notice of their intention so to do, in the form of a resolution describing the work, and signed by the Clerk of said Board, has been published for a period of ten days.”
The complaint alleges that a resolution to do the work, in all respects in the form prescribed by statute, was passed by the Board on the 25th day of October, 1869, and that the “said resolution was dulyjúgned by the Clerk of said Board, and was afterwards published ” in the official newspaper of the city “for ten days, commencing on the 27th day of October, 1869, and continuing thence for ten consecutive days (Sundays excepted).”
As a question of pleading we think this sufficient. The averment is as broad and full as the language of the statute under'which the proceeding was taken.
Whether, as a matter of fact, the publication should be ordered by the Board, is a question upon which the Judges of this Court were not agreed in Chambers v. Satterlee, 40 Cal. 497, and upon which we are not now called upon to express an opinion.
■ The next point is, that the action should have been brought in the name of the City and County of Ban Francisco, under the provisions of the Act of April 4th, 1870; This point was presented and very fully argued in Dyer v. Pixley, ante, p. 153. After great consideration we came to a conclusion
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