Ede v. Cuneo

California Supreme Court Dec 9, 1898 No. S. F. No. 905Published

Before: Harrison

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Holding. The court held that a second street assessment is only authorized under Section 9 of the street improvement act when a prior suit was defeated specifically due to defects in the assessment, its recording, or its return, and that the absence of an engineer's certificate does not satisfy these statutory requirements.

Issues

Whether the complaint sufficiently alleged that a prior suit was defeated by defects in the assessment, its recording, or its return as required by statute.
Whether the absence of an engineer's certificate constitutes a defect in the 'assessment' authorizing a second assessment under the statute.
Whether the complaint's allegations regarding the recording of the assessment were sufficient to withstand a demurrer for uncertainty.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute does not authorize a second assessment in all cases in which the plaintiff shall fail to obtain a judgment in his favor upon the prior one, but has specified certain grounds of his defeat as the only ones”

Synopsis

Street Assessments.—The Street Improvement Act (section 9), authorizing a second assessment where an action to foreclose a lien for street work is defeated by reason of a defective assessment, does not authorize a second assessment where such an action is defeated for want of an engineer’s certificate.

Street Assessment.—A Demurrer to a Complaint to Foreclose a lien for street work, alleging that a second assessment had been made under the street improvement act (section 9), for the reason that the prior assessment and engineer’s certificate were “never duly or properly or legally recorded,” should be sustained for uncertainty, as the statement as to the defects in the first assessment is merely a legal conclusion.

HARRISON, J. The complaint is in the ordinary form for the foreclosure of the lien of a street assessment and alleges that, the contract for doing the work was entered into August 13, 1890, and completed within the time fixed there[186]for, and that an assessment for the work was issued July 6, 1896. It alleges that on the 16th of November, 1891, the superintendent of streets issued an assessment for the work, with a warrant and diagram attached, upon which a suit was commenced, and in which a final judgment was entered against the plaintiffs therein, and that it appears, by said final judgment that the plaintiffs were defeated by reason of the fact that neither the assessment, diagram, warrant nor engineer’s certificates were duly or properly recorded in the office of the superintendent. of streets; that within three months after the entry of said final judgment, upon the application of an interested party, the superintendent of streets made another assessment, with diagram and warrant attached, upon which a suit was subsequently brought, and in which a final judgment was rendered that the plaintiff was not entitled to recover thereon; that it appears by the final judgment rendered in the last-named action that the plaintiff was defeated by reason of the fact that the city engineer had never made any engineer’s certificate of the work, and that the assessment, diagram, warrant or purported engineer’s certificate had not been duly or properly or legally recorded in the office of the superintendent of streets; that within three months after the entry of this judgment the superintendent of streets made and issued the assessment, diagram and warrant upon which the present action is brought. It is alleged that the suit upon the second assessment was entitled “Joseph Wells, Assignee of Said Contract, Plaintiff, against J. W. McDonald, Defendant,” but the connection of either of these parties with the subject matter of the suit is not shown. There is no direct allegation that the contract or the assessment was ever assigned to Wells, and it is alleged that Buck-man and Perrine, assignees of Vincent, to whom the contract was awarded, did all the work of the contract. Neither is there any allegation that McDonald had any interest in the land assessed, while it is alleged that the defendants herein were the owners of said land during all the times of taking the proceedings for the improvement. To this complaint the defendants demurred upon the ground that it did not state facts sufficient to constitute a cause of action, and also upon the ground that it was uncertain in failing to show the particular defects, omissions and irregularities in the assessments upon which the court determined that the plaintiff was not

Ede v. Cuneo

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