Oakland Bank of Sav. v. Sullivan

Britt, C. The plaintiff, Oakland Bank of Savings, brought this action to foreclose a mortgage to it executed by defendant, D. T. Sullivan, on certain land in Alameda county. The Alameda Macadamizing Company, a corporation, and Bannister & Lewis, copartners, wére joined as parties defendant with the mortgagor, because of their claim of interest in the mortgaged premises. Such premises abut upon both Broadway street and San Jose avenue in the city of Alameda. Said Macadamizing Company had performed work in the grading, paving, etc., of said San Jose avenue, and Bannister & Lewis had done similar work on Broadway street. Such improvements were made in virtue of contracts for that purpose entered into by said Macadamizing Company and Bannister & Lewis, respectively, with the superintendent of streets of said city, under the act to provide for work upon streets, etc. (Stats. 1885, p. 147.)

The Macadamizing Company filed a cross-complaint, wherein it set up the proceedings taken, which, as claimed, established a lien in its favor on the land of Sullivan to secure payment of the sum assessed against the same for the improvement of said San Jose avenue, and prayed the enforcement of said lien. Similarly, Bannister & Lewis sought the enforcement of their lien for the work done on Broadway street.

The court below rendered judgment directing that said contractors, as well as the plaintiff, be paid out of the proceeds of the sale of the premises. Defendant Sullivan appeals.

[4301]. It is said that the board of trustees of the city (exercising the duties of the city council mentioned in the statute) passed its resolution ordering the improvement of San Jose avenue before it acquired jurisdiction so to do under the provision of section 3 of the act referred to (Stats. 1885, pp. 148, 149); and this is the only ground on which the judgment in favor of the Macadamizing Company is assailed. The facts appear to be that the resolution of intention to grade and otherwise improve said avenue was passed by the board on September 16th; that notices of the passage thereof were posted along the line of the contemplated work on September 20th, “and kept posted forfifteen days thereafter”; that a similar notice was published in a newspaper for a period of five days, commencing on said September 20th; and that on October 14th following the board passed its resolution ordering the work to be done.

Appellant’s point is that on October 14th fifteen days had not elapsed after the notices of the passage of the resolution of intention were posted; that because the notices were kept posted for fifteen days from September 20th, and because the statute (section 3 of the act of 1885) requires the expiration of fifteen days “ after the posting” before the council could order the work to be done, therefore the resolution of October 14th was premature, and could not have been lawfully passed before October 20th. This argument is'neither specious nor sound. The plain effect of the statute is that when a period of fifteen days after the first posting of the notices (as well as ten days after the full period of newspaper publication) had elapsed, the board then had jurisdiction to order the work; not that such period must have intervened after the notices were taken down, if they were taken down at all.