Onderdonk v. City & Cty. of S.F.
Before: Foote
Synopsis
Appeal — Entry op Judgment.—An appeal from a judgment prior to its entry is premature, and will be dismissed.
Street Assessment—San Francisco—Grading Bay Street—Government Reservation. — Under the act of April 1, 1878, providing that the city and county of San Francisco should be liable for grading Bay Street, in front of the United States reservation, upon the refusal of the government of the United States to pay therefor, a refusal to pay, made by the general in command of the forces on the reservation, by the assistant treasurer of the United States, and by the Secretary of War, is sufficient to fix the liability of the city and county.
Id. — Statute op Limitation. —An action to enforce the liability of the city and county for grading done in front of such reservation, under a contract providing for such work, is based either on a contract founded on an instrument in writing, or on an obligation or liability arising out of an assessment made in writing, both executed in this state, and consequently could not be barred by the provisions of subdivision 1 of section 389 of the Code of Civil Procedure, which relates to a contract, obligation, or, liability not founded upon an instrument in writing, or upon an instrument in writing executed out of the state. A plea of such section, therefore, raises no issue.
Foote, C. The appeal herein was taken from a judgment in favor of the plaintiff, Onderdonk, and from an order refusing to grant a new trial to the defendant, the city and county of San Francisco. The judgment was entered on the twenty-fourth day of January, 1885, the appeal was taken on the third day of November, 1884, which, being premature, must be dismissed upon the authority of McLaughlin v. Doherty, 54 Cal. 519.
The action was brought upon a contract to grade Bay Street, in the city and county of San Francisco, from the easterly line of Van Ness Avenue to Gough Street.
In the statement on motion for a new trial, the appellant, viz., the city and county of San Francisco above mentioned, assigned for error several particulars in which it claimed the evidence to have been insufficient to support the decision made and given, and wherein the court in making it did so “against law.”
The first point, viz., that the evidence did not show the work to have been completed within the time provided in the contract, is abandoned, and need not be noticed.
It is next contended that under the provisions of the ■^contract itself, the defendant was not liable.
The clause of the contract under discussion is as follows: “And it is agreed and expressly understood by the parties to this agreement that in no case (except where [536]it is otherwise provided in the'acts aforementioned and referred to) will the said city and county of San Francisco be liable," etc.
The contract was made under and by virtue of “An act repealing article 4, of an act entitled ‘An act to repeal the several charters of the city and county of San Francisco/ etc., approved the nineteenth day of April, 1856," etc.
The clause of the contract supra includes no exemption on the part of the city aforesaid to pay for improvements made of the kind sued for here, under any law which has become such since 1856.
The act authorizing the grading of Bay Street, for which this action is instituted, was approved on the first day of April, 1878, and has been held to be a modification of and supplemental to the general street laws then in force. (Jennings v. Leroy, 63 Cal. 397.)
According to the terms of that act, the board of supervisors of the defendant here were empowered to have the» grading done for which the contract sued on was executed.
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