Buckman v. Hatch

GRAY, C. This is an action to foreclose a street assessment. There was no demurrer to the complaint, but defendants answered, and on a trial plaintiff obtained judgment. Defendant Nicol appeals from the judgment, and the record on said appeal consists of the judgment-roll without a bill •of exceptions.

Two points are made by appellant, both directed to the sufficiency of the complaint.

1. It is claimed that it appears from the face of the complaint that the resolution of intention describing the work was insufficient to confer jurisdiction on the board of supervisors, in that it did not show of what materials the cesspools and culverts mentioned therein were to be constructed. The complaint does not contain a copy of the resolution of intention, but the same is set out in the complaint according to its legal effect. We quote from the complaint as follows: “That under and in pursuance of said act approved March 18,1885, and the acts amendatory thereof and supplementary thereof, the following proceedings were duly had and taken, to wit: That on the eighth day of July, 1895, the board of supervisors of said city and county, at a regular meeting thereof, duly made and passed a resolution, to wit, resolution of intention No. 12,603, describing the work, wherein and whereby said board resolved that it was their intention to order the following work in said city and county to be done and improvement to be made,” etc. And further: “Said board of supervisors, deeming that the public interest and convenience required the above-described work to be done, duly gave, and made, and at a regular meeting of said board passed, its order and resolution designated as ‘No. 12,893/ providing for and ordering said work to be done, and thereby duly gave and made its determination to order [13]the said work done, which said order and resolution No. 12,893, after it was so duly given, made, and passed, was signed by the said clerk of said board of supervisors, .... and by its order and resolution of award No. 13,113, duly given and made and passed therefor, .... did duly award the contract for said work and improvement to F. Leffler.” And again: “And all and singular the proceedings aforesaid and determinations of said boards and officers hereinbefore referred to, and of each of them, including those of said contractor and of his agents and assigns, were each and all duly given and made, and each and all acts aforesaid were duly performed, within the time and in the manner required by law.” We think such allegations are sufficient to show that the board had jurisdiction to award the contract, and to sustain the judgment—at least in the absence of any demurrer to the complaint, and with no question appearing to have been made upon the trial as to the sufficiency thereof. If the reference to the resolution as 1 ‘ describing the work, ’ ’ and the allegations to the effect that said resolution was “duly given and made,” “duly had and taken,” “and in the manner required by law,” and that the resolution awarding the contract was “duly given, made, and passed,” are all true, it must be that the first resolution fully described the materials of which the cesspools and culverts were to be constructed, for, if it did not contain such a description, the several resolutions were not “duly given, made and passed”; and the action of the board was not “duly had and taken” in the premises. “In pleading a judgment or other determination of a court, officer or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made,” etc.: Code Civ. Proc., sec. 456; Improvement Co. v. Fulton, 4 Cal. Unrep. 151, 33 Pac. 1117; Williams v. Bergin, 127 Cal. 578, 60 Pac. 164.