Dorland v. McGlynn
Before: Belcher
Synopsis
Lien pob Stbebt Assessment.—If an action to enforce a lien for an assessment for improving a street in San Francisco is commenced within two years after the lien attaches, the lien does not expire on the expiration of two years, but continues until the judgment is rendered.
Bekbab of Act Concerning Evidence in Street Assessment Case.—The law making tho assessment, warrant and diagram, with affidavit of demand and non-payment, prima facie evidence of the indebtedness and right to recover, in an action to enforce a lion for a street assessment in San Francisco, was not repealed by the Act of April 4th, 1870,' on the same subject.
Parol Evidence to Contradict Records.—The records of the Board of Supervisors of San Francisco, concerning the publication of notices of the award of contracts for street improvements, cannot be contradicted by parol evidence.
Diagram bob Street Assessment in San Francisco.—A diagram for a street assessment in San Francisco, is sufficient, if it correctly exhibits the street and street crossings on which work has been done, and shows the number of front feet assessed for the work contracted for and performed, and the relative location of each lot or portion of a lot to the work done.
Remedy bob Ebbors in Street Assessment .—If an appeal lies to the Board of Supervisors of San Francisco for errors in the diagram for a street assessment, there is no other remedy.
By the Court, Belcher, J.: In this action, which was for a street assessment in the City of San Francisco, the plaintiff recovered judgment, [50]and the- defendants have appealed from the judgment and from an order denying their motion for new trial.
The first two points presented by the appellants, to the effect that the liens had expired by limitation before the rendition of the judgment, and that the law making the assessment, warrant and diagram, with the affidavit of demand and non-payment, prima facie evidence of the indebtedness- and o t the right of the plaintiff to recover in the action, had been repealed by the Act of April 4th, 1870, were considered and overruled in Himmelman v. Carpentier, ante, p. 42.
The point that the notices having sealed proposals were irregular and void because they were not posted for five full days is answered by the pleadings. The complaint alleges that these notices were “conspicuously posted and kept posted in the office of the Superintendent of Public Streets and Highways of said city and county, for five successive days,” and this allegation is in no way denied by the answer.
The point that the Court erred in excluding parol testimony, offered to prove that the notices of award were not published, by order of the Board of Supervisors, is manifestly untenable. The records of the Board show that its clerk was directed to advertise the awards as required by law, and these records could not be contradicted by parol.
The only remaining point to be-considered relates to the description of the lots assessed. It is claimed that there is nothing in the assessments or diagrams showing whether the lots are situated in the city and county of San Francisco or elsewhere, and that the description of one of them is in other respects insufficient. The complaint describes the lots with particularity, and alleges that they are situated in the city and county of San Francisco, and were duly assessed as the property of. unknown owners. The answer denies only that the lot described as lot No. 5 was assessed for the exact sums named in the complaint, and that the diagrams attached to the assessments exhibited said lot and its relative location to the work mentioned. It is by no means clear, in view of the pleadings, that the point can be made; but waiving that question, we think it not well taken.
[51]
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