City Street Improvement Co. v. Babcock

HARRISON, J. The complaint alleges that on October 22, 1894, the board of supervisors “duly made and passed” a resolution ordering the work to be done, and also contains allegations of the subsequent proceedings up to and including the recording in the office of the superintendent of the return upon the warrant and assessment. The answer denies that the board of supervisors duly made and passed the resolution ordering the work, and also denies various other allegations of the complaint. The court finds that the board did not duly make or pass any resolution ordering the work. The appellant contends that this finding is insufficient; that, [911]instead thereof, the court should have found the facts from which it might appear that the resolution was not duly passed. In Pacific Paving Co. v. Bolton, 97 Cal. 8, 31 Pac. 625, it was held that, under section 456 of the Code of Civil Procedure, an allegation of the ordering of the work in this form was sufficient. That section also provides: “If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction.” It does not follow, however, that in making its finding upon this issue the court must find those facts. The findings should be of the ultimate facts pleaded, not of the probative facts: McCarthy v. Brown, 113 Cal. 15, 45 Pac. 14. The ultimate fact to be found is the jurisdiction of the board to pass the resolution. The finding that the board did not duly pass the resolution is equivalent to a finding of that ultimate fact. If the evidence is insufficient to sustain such finding, the particular facts of such insufficiency can be specified in the statement upon a motion for a new trial.

The court also found that on February 26, 1894, the board of supervisors passed a resolution of its intention to order the work, but that, within ten days after the publication and posting of a notice thereof, the owners of a majority of the frontage of the property fronting thereon delivered written objections to the same to the clerk of the board, who thereupon indorsed thereon the date of its reception by him, and that the said board thereafter sustained the said objections. This finding is challenged by the appellant as not sustained by the evidence. A document containing objections to the improvement, purporting to be signed by the owners of a majority of the frontage liable to be assessed therefor, was introduced in evidence on the part of the defendants, bearing the indorsement “Clerk’s Office. Filed Mar. 5, 1894. San Francisco, Cal. Board of Supervisors.” The superscription upon the document was not signed or 'authenticated in any manner, nor was it shown by whom the indorsement was made. It was, however, shown that at a meeting of the board of supervisors on March 5th this paper was read and referred to the street committee ; that that committee afterward reported that the protest contained therein was a bar for six months to any further proceedings in relation to the performance of the work, and that on March 12th this report was read at a meet