MacLaren v. Reedy

VAN DYKE, P. J. This is an appeal from a judgment decreeing the foreclosure of the liens of certain street improvement bonds.

The present action was brought pursuant to section 6610 of the Streets and Highways Code, which provides that:

“As a separate, distinct and cumulative remedy, the holder of any bond upon which any payment either upon the principal or of the interest has become delinquent may, if the city which initiated the proceedings is not a county, at any time after three months after the date it is provided by ordinance or charter of the city that taxes are due, or if a county initiated the proceedings or collects the taxes for the city at any time after four months next succeeding the fourth Monday of September, following the date of delinquency of principal or interest and prior to the expiration of four years after the due date of the last installment upon any bond or of the last [672]principal coupon attached thereto, file and maintain an action to foreclose the lien of the bond and recover the amount due thereon. ’ ’

We conclude that sections 6610 and 6611 prescribe alternative times for the commencement of an action to foreclose the lien of an improvement bond. That conclusion is fortified by the fact that the provisions of sections 6610 and 6611 were prior to codification in 1941 contained in section 76a of the Improvement Act of 1911, as amended (Stats. 1929, ch. 718, p. 1306), which read in part as follows:

“In the event of the nonpayment of any installment of the interest or principal and by way of a separate, distinct and cumulative remedy, the holder of any bond upon which any payment either upon the principal or of the interest has become delinquent may, at any time after three months after the date it is provided by ordinance or charter of said city that taxes are due, or in case taxes are collected by the county for the city at any time after four (4) months next succeeding the fourth Monday of September, following the date of delinquency of principal or interest and prior to the expiration of four (4) years after the due date of the last installment upon any bond or of the last principal coupon attached thereto, file and maintain a suit to foreclose the lien of the bond and recover the amount due thereon; provided, however, that suit may be brought at any time following the expiration of thirty [673]