Gillis v. Cleveland

California Supreme Court Dec 20, 1890 No. No. 13969Published

Before: Gibson

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Holding. Under the Act of March 18, 1885, street assessment liens are separate and distinct demands against each individual lot, meaning a prior recovery on one lot does not bar a subsequent action to foreclose a lien on a different lot owned by the same person. Furthermore, a clerical omission of the mayor's name in the recorded copy of a warrant does not invalidate the lien if the original warrant was properly signed and authenticated.

Issues

Whether a judgment for a street assessment on one lot bars a subsequent action for an assessment on a different lot owned by the same person.
Whether the omission of the mayor's name from the recorded copy of a street assessment warrant renders the recording ineffectual.

Disposition. affirmed

Quotations verified verbatim against the opinion

“each lot, or portion of a lot, is separately liable for its proportion of the cost of the improvement, and that the liability of each is independent of any other, and constitutes a separate demand”

“the recovery as to lot 2, in the former action, although between the same parties, was not upon the same, but a different, cause of action”

“the record shows that the warrant was properly signed and countersigned; but that the superintendent of streets, in recording it in the record-book, in his office, failed to copy the name and official designation of the mayor.”

Synopsis

Street Improvement — Assessment — Lien upon Lots — Foreclosure —• Several Right of Action — Former Recovery — Plea in Bar. — Under the act of March 18, 1885 (Stats. 1885, p. 147), providing for the assessment of abutting lots for the expenses incurred for street improvements, and that the amount assessed upon each lot shall be a lien thereon, each lot or portion of a lot is separately liable for its proportion of the cost of the improvement, and the liability of each is independent of any other, and constitutes a separate demand upon which a separate cause of action may be based, and the foreclosure of a lien upon one lot is not a bar to an action to foreclose a lien upon another lot owned by the same person.

Id. — Personal Liability. — The expense of the improvement is a lien upon the property benefited, and not a charge against the owner personally.

Id.—Attorney’s Fees — Allowance against Each Lot.—Under section 12 of such act, allowing a certain amount as an attorney’s fee, in addition to the taxable costs, in all cases of recovery under the provisions of the statute, the fee may be allowed as against each lot, although owned by the same person.

Id.—Record of Warrant of Assessment. — A warrant of assessment must, in order to create a lien upon the property charged, be recorded in the office of the superintendent of streets before it is delivered to the contractor or his assigns.

Id. — Omission of Name of Mayor from Record. — Where the warrant of assessment was properly signed by the superintendent of streets, and contersigned by the mayor, the fact that the name of the mayor and the designation of his office were omitted from the record by the superintendent does not render the recording ineffectual.

Gibson, C. This action was brought to foreclose a street-assessment lien for the grading of Logan Avenue, in the city of San Diego.

The defendant, in his answer, put in issue some of the material allegations of the complaint, and as one of his affirmative defenses set up a former recovery in another action between the same parties. This plea in bar was, upon plaintiffs’ motion, stricken out; and upon the trial subsequently had before the court without a jury, judgment was rendered for the plaintiffs, from which the defendant appeals.

Appellant’s counsel maintain that the court erred in striking out the plea in bar.

The property affected in the former action was lot 2, in block 179, of Manassee and Schiller’s addition to the city; while in this action it is lot 9 in the same block. They both were and are owned by the defendant, and front on «Logan Avenue, and were both assessed for the same grading, which was let as a single contract by the city to the plaintiffs, who performed the work. The latter brought a separate action against the defendant as to lot 2, and obtained a judgment, which appears to have been satisfied. And it is now claimed that as that judgment was rendered in an action upon the same assessment, which constituted but one entire demand, it [216]was a recovery upon a portion of such demand, and is good as a plea in bar of the present action.

But we think an examination of the act of March 18, 1885 (Stats. 1885, p. 147), under which the improvement and assessment were made, will show that the rule invoked by the appellant has no application here.

It is provided in the first subdivision of section 7 of that act that the expenses incurred for any work authorized by the act “ shall be assessed upon the lots and lands fronting thereon; .... each lot or portion of a lot being separately assessed, in proportion to the frontage, at a rate per front foot sufficient to cover the total expenses of the work.”

And section 8 provides that “after the contractor of any street-work has fulfilled his contract to the satisfaction of the street superintendent of the said city, or city council on appeal, the street superintendent shall make an assessment to cover the sum due for the work performed and specified in said contract (including any incidental expenses).” This assessment shall show, among other things, “the amount of each assessment, the name of the owner of each lot, or portion of a lot (if known to the street superintendent); if unknown, the word ‘ unknown ’ shall be written opposite the number of the lot, and the amount assessed thereon, the number of each lot or portion of a lot assessed, and shall have attached thereto a diagram exhibiting .... the relative location of each distinct lot or portion of a lot to the work done,” etc. Section 9 provides that a warrant signed by the superintendent of streets, and, countersigned by the mayor of the city, shall be attached to the assessment. The warrant, assessment, and diagram must then be recorded in the office of the superintendent of streets. “When so recorded, the several amounts assessed shall be alien upon the lands, lots, or portions of lots assessed, respectively, for the period of two years from the date of said recording, unless sooner discharged. . . . .

Gillis v. Cleveland

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