Brown v. Jenks

Temple, C. This appeal presents two questions: 1. Whether the court properly overruled defendant’s demurrer to plaintiff’s complaint. 2. Whether the court properly struck out a defense from the answer.

Respondent confesses error in striking out the defense, and Consents that the case be reversed on that ground. He says the point made by defendant on the demurrer is radical and important, and will be argued when the case is again here, in. such form as to require its determination. The question as to the correctness of this ruling is properly presented on this appeal from the judgment, and the consent of respondent to a reversal on some other ground, which does not dispose of the demurrer, cannot deprive appellant of his right to have it determined. [11]The question there raised is whether defendant can be put to the labor and expense of a trial on the merits or not. Naturally, it is the first point to be determined, and as the city of San Diego may have an interest in the question beyond this case, it is to be regretted that.we have not the advantage of the views of its counsel upon the subject.

The action is brought upon an assessment for street work.

It appears that the city council passed a resolution to the effect that it was its intention to order the following street work done: “That D Street from the east line of California Street to the east line of Front Street .... be paved with hard porphyry rock macadamizing, and cross-walked with granite, and guttered with granite, all in accordance with the general specifications and the special specifications No, 1 for business streets,” etc.

The notices required were duly given, a resolution in due form passed, published for the proper time, an order made requiring the work to be done, and the work was contracted to be done in accordance with the resolution of intention, by a contractor who has done the work as required, which- has been duly accepted by the proper officers of the city.

The specifications referred to required the contractor to give a bond with sureties, conditioned “for keeping the streets so improved in thorough repair for the term of five years from the completion of the contract j payment in full of the contract price shall not release the contractor or sureties on said bond until five (5) years shall have expired. The necessity of such repairs shall be determined by the street commissioner and ex officio superintendent of streets and the street committee of the city of San Diego.”