Funk v. Campbell

BARNARD, P. J. This is an action to foreclose a street improvement bond issued pursuant to the provisions of the “City Boundary Line Act” (Stats. 1912, p. 1018), as amended. The proceedings were initiated by a resolution of intention adopted on March 27, 1927. The bond in question was issued on April 2, 1928. Five of the annual payments provided for in the bond were made and a default having been made in the payment of the five remaining annual instalments this action was begun on December 12, 1938. The court entered findings and judgment in favor of the plaintiff and the defendants have appealed from an order denying their motion to set aside the judgment and to enter a different judgment. The appeal is taken on the judgment roll alone and the record does not disclose the nature of the work done under the proceeding leading to the issuance of this bond. However, the appellants especially direct our attention to the language of the act relating to “storm drains,” which may indicate that the work was of that nature.

The appellants first contend that a conclusion of law drawn by the court to the effect that they are barred from now attacking the validity of the form of the return of the warrant, or from attacking the validity of the assessment lien represented by this bond, is erroneous. In this connection it is argued that the Boundary Line Act, as adopted in 1911, contained no limitation of time or curative provisions which cut off the appellants’ right to defend this action, and that the 30-day limitation in section 13 of the Boundary Line Act [137]which was added by an amendment in 1927 (Stats. 1927, p. 805), is inapplicable to the appellants because it went into effect July 29, 1927, after the resolution of intention for this work was adopted although prior to the issuance of the bond. It is unnecessary to pass upon this contention since we entertain the view that the proceedings themselves are not vulnerable to the attack which the appellants now desire to make upon them.

Section 12 of the act provides that the warrant shall be returned within thirty days after its date with a verified return endorsed thereon signed by the contractor or his assigns or some other person in his or their behalf, stating the nature and character of the demand and whether any of the assessments remain unpaid and the amount thereof. That section further provides that if any contractor shall fail to make such a return “he shall thenceforth have no lien upon the property assessed.” It is not here contended that a return was not made, endorsed upon the warrant, and no attack is made upon the sufficiency of the statements in the return as made. The only objection is that “in our case there is no return except a showing that the corporation swore to the return. A corporation cannot swear, so this is not an oath of anybody.” The return, as made, does not appear in the record and this objection thereto is based upon paragraph II of the findings. It was therein found that a return was made within thirty days after the date of the warrant “signed by Pacific Seaboard Corporation, by Neis Gross, President, which company was the assignee of the contractor who performed the work,” and that after the signature of the said Neis Gross the return was signed by a named notary public, who affixed his seal thereto.