Himmelman v. Carpentier

California Supreme Court Jul 1, 1873 No. No. 3,593Published

Before: Belcher

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Holding. The court held that a street assessment lien does not expire if the action is commenced within two years, even if judgment is rendered later, and that the assessment record constitutes prima facie evidence of the right to recover.

Issues

Whether a street assessment lien expires if judgment is not rendered within two years of recording.
Whether the Act of April 4th, 1870, repealed the rule making assessment records prima facie evidence of the right to recover.
Whether the validity of a contract award is affected by defects in a prior notice that was not the basis for the award.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we hold that the contractor did not lose his lien because the judgment was not rendered within two years after the recording of the assessment.”

“it was the intention of the Legislature to make the assessments, or the original record thereof, prima facie evidence of the plaintiff’s right to recover in all actions then pending or thereafter to be brought”

Synopsis

Lien oi? Stbeet Conteactob.—A contractor for improving a street in San Francisco, does not lose his lien on lots fronting on the street, for the sums assessed, to pay for the improvement, from the fact that a judgment enforcing the lien is not rendered within two years from the time the lien attached, provided his action to enforce the lien is commenced within the two years.

Evidence in Action to Recoves Stbeet Assessment.—The ninth section of the Act of April 4th, 1870, as to street assessments in San Francisco, did not have the effect of changing the rule of evidence fixed in the fourth section of the Act of March 26th, 1868, which provides that the warrant, assessment and diagram, with the affidavit and demand of non-payment, shall be prima facie evidence of the plaintiff’s right to recover, so as to compel the plaintiff to prove all prior proceedings, but, under said Act of 1870, the assessment or assessments, or original record thereof, are prima facie evidence of the plaintiff’s right to recover.

Presumption in Favor op Regularity op Street Assessment.—When the resolution of intention to improve a street in San Francisco, requires the street to be graded to the official grade, and two notices are published inviting sealed proposals, and the record only contains the first notice which requires the street to be graded one foot below the official grade, and is not published five days, and the award is made under the second notice, and judgment was for the plaintiff, the presumption is that the second notice was in accordance with the resolution of intention, and was published for the requisite time.

Power to Change Rude op Evidence.—The Legislature has power to change a rule of evidence after the contract to which the rule applies has been made, and after the action in which the rule is to be applied has been commenced.

By the Court, Belcher, J.: This is an action to recover a street assessment for grading a portion of Fillmore street, in the city of San Francisco. The plaintiff recovered judgment, and the appeal is from the judgment and an order denying a motion for a new trial.

The first point presented by the appellant is that the lien of the assessment had expired by limitation before the trial, and the court had no power to render the judgment after the expiration of the lien. The assessment, warrant and diagram were recorded November 27th, 1868, the ac[46]tion was commenced within two years, and the judgment was rendered September 22d, 1871. The same point was made in Randolph v. Bayue, 44 Cal. 366, and decided against the views of the appellant. Upon the authority of that case, we hold that the contractor did not lose his lien because the judgment was not rendered within two years after the recording of the assessment.

The next point is, that at the time of the trial the assessment, warrant, diagram and affidavit of demand and nonpayment did not constitute proof of the prior proceedings, and that no other evidence was offered by the plaintiff. The argument is, that section 4 of the Act of March 26th, 1868 (Statutes 1867-8, p. 363), which made the warrant, assessment and diagram, with the affidavit of demand and non-payment, prima facie evidence of the indebtedness and of the right of the plaintiff to recover in the action, was repealed when that section was amended by the Act of April 4th, 1870 (Statutes 1869-70, p. 898), and the plaintiff, in order to establish his right to recover, was therefore required to make common law proof of all the necessary prior proceedings. We do not agree with the appellants in their construction of the Act of 1869-70. This act made some important changes in the street assessment law of San Francisco, but it did not, we think, accomplish all that is claimed for it. Undoubtedly it was competent for the Legislature to change the rule of evidence theretofore provided, and to some extent it did change it, but it substituted another rule quite as favorable for the plaintiff. Among other things, the act provided that actions for the collection of delinquent street assessments should be brought by the Assistant City and County Attorney, in the name of the people of the city and county, and that “ said assessment or assessments, or the original record thereof, shall be prima facie evidence of plaintiff’s right to recover in the action.” It further provided that “in all suits now pending, or hereafter to be brought to recover street assessments, the proceedings therein shall be general [governed] and regulated by the provisions of this act.” It also declared that the act should be liberally construed to carry out the intentions

Himmelman v. Carpentier

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