Dyer v. Brogan

The Court : Plaintiff brought his action to foreclose a lien for work done on one of the streets of the city of San Francisco. On the trial, [235]the assessment, diagram, and warrant described in the complaint were given in evidence, and the affidavit of demand was offered in evidence, was objected to by defendant, and was excluded by the Court.

The question presented by this appeal is, Was the affidavit evidence of the demand? We are of the opinion that it was, under § 11, Laws of 1871-72, pp. 814, 815.

Judgment reversed, and cause remanded for a new trial.

Subsequently to the judgment, the appellant made a motion that the judgment be modified; and on the hearing of the motion, the Court made the following order:

Thornton, J.: A motion is made by the plaintiff to modify the judgment in this cause heretofore rendered by this Department on plaintiff’s appeal, reversing the judgment of the Court below.

The action was instituted to enforce a street assessment; and on the trial in the District Court, the affidavit of demand required by the eleventh section of the Act of 1872 (Stats. 1872, p. 814) was excluded, as insufficient to prove such demand.

The Court found, as a fact, that no demand was ever made. This must necessarily have been so, as the bill of exceptions shows that there was no evidence of demand before the Court after the affidavit was excluded.

The ruling above stated was excepted to by the plaintiff, and this Court held that the Court below erred in excluding the affidavit, reversed the judgment, and remanded the cause for a new trial.

Plaintiff’s motion is to modify the judgment rendered here, by ordering the Court below to enter judgment for the plaintiff. It is argued that the Court having ruled that the affidavit was improperly excluded, therefore this Court should treat it as if it were in and the demand properly found, of which it is conclusive evidence; and as then the plaintiff would be entitled to a judgment, the Court should order judgment to be entered as moved for.

This would be to convert this Court into a court of original jurisdiction. We would then be trying the case on the evi[236]