Frenna v. Sunnyside Land Co.
Before: Gray
Synopsis
Street Assessment—Defective Certificate of Engineer—Signature by Employee.—No lien can be acquired under a street assessment without the record of a valid certificate of the city engineer required by law to be recorded with the warrant, assessment, and diagram in the office of the superintendent of streets. If such certificate is not signed by the city engineer either in person or by deputy, but his name is signed thereto In the hand■writing oí a mere employee, who did the surveying and measuring required to be done and certified by the city engineer, it is fatally defective and invalid, and its record cannot constitute the basis of a lien.
Id.—Recitad in Subsequent Certificate—Defect not Aided by Proof. A subsequent certificate signed by the city engineer, merely certifying that the record of the former certificate shows certain specified facts, cannot have the effect to aid or cure the defective certificate, but is at best only secondary evidence of its contents. The defective certificate cannot be cured by any proof that the facts stated therein are true.
GRAY, C. Actions for foreclosure of liens for street work. Defendants had judgment, and the plaintiff appeals.
Plaintiff’s right to recover in these suits depends upon the validity of the lien which the suits were brought to foreclose. This lien is attacked by respondents on several grounds, only one of which it will be necessary to notice in this opinion. Section 9 of the street improvement act, as amended in 1889, provides: “Said warrant, assessment, and diagram, together with the certificate of the city engineer, shall be recorded in the office of said superintendent of streets. When so recorded, the .several amounts assessed shall be a lien 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.” It would seem from this that there can be no lien without a certificate of the city engineer being recorded. (Stat. 1889, p. 167.) The certificate here referred to is presumably the one mentioned in section 34 of the act (Stats. 1891, p. 306), which relates to surveys and estimates of work to be done under the act, and' when signed by the city engineer in his official character is to be treated as prima facie evidence of the truth of its contents. (Gray v. Lucas, 115 Cal. 430.) The [439]plaintiff put in evidence a certificate, which he contends fills the requirement of the statute, and which is in words and figures as follows:
“No. 1729. San Francisco, April 3, 1896.
“I certify that a record in this office of certificate No. 596, date June 15, 1894, for grading, wooden curbs and maeadem on Circular Ave., between San J ose Ave. and Flood Ave., shows that the work was examined and found to be practically to the official line arid grade, average crown of Mac. 6" above official grade. Number of cubic yards of grading circular line:
Cut. Fill. San Jóse to Sunnyside....... ...... 108 1,668 Crossing of Sunnyside ....... ...... 414 258 Sunnyside to Acadia ........ ...... 416 353 Crossing of Acadia .......... ...... 850 000 Acadia to Moulton.......... ...... 2,638 408 Crossing of Moulton......... ...... 57 1,439 Moulton to Baden........... ...... 0000 1,916 Crossing of Baden........... ...... 508 259 Flora to Baden............. ...... 44 687 “Total........... ...... 5,035 6,988
“0. S. TILTON,
“City Engineer.
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