Pacific Paving Co. v. Gallett — 137 Cal. 174

Majority

p. 174

[S. F. No. 2086.

Department Two.

August 8, 1902.]

PACIFIC PAVING COMPANY, Appellant, v. H. W. GALLETT et al., Respondents.

Headnote

Street-Work—Objection of Property-Holders—Loss of Jurisdiction —Case Affirmed.—A written objection of property-holders to proposed. street-work, purporting to be signed by the owner of a majority of the frontage, not affirmatively disallowed as not legally signed by such majority, is sufficient, though actually filed before the expiration of the time for posting and publication of the notice for street-work, and though not' formally indorsed by the clerk, if otherwise sufficiently identified and authenticated, and deprives the board of jurisdiction to order the improvement under the original resolution. [Thomason v. Carroll, 132 Cal. 148 , affirmed.]

p. 175

Id.—Testimony of Deputy Clerk—Absence op Other Besolution.— In an action to enforce a street assessment levied in fact under the original resolution of intention, evidence of the deputy clerk was admissible to prove that no other resolution of intention to do the street-work involved was passed by the supervisors than that introduced in evidence.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. M. Seawell, Judge.

The facts are stated in the opinion.

Gunnison, Booth & Bartnett, for Appellant.

D. H. Whittemore, for Respondents.

Appeal from a judgment for the defendants in a suit upon a street assessment, and from an order denying the plaintiff’s motion for a new trial. The case is substantially similar to that of Thomason v. Carroll, 132 Cal. 148 . In this case, as in that, the “written objection” of the property-holders to the proposed work was filed before the expiration of the time for posting and publication of the notices of street-work; and the order for the work was passed without regard to the objection and without passing any other resolution of intention. In this case the objection is also made that it does not appear that the “written objection” was indorsed by the clerk; but the document itself appears in the statement, and is indorsed substantially as the corresponding document in the case cited. It is objected also—as a ground for new trial— that the admission of the “written objection,” without proof of signature, or proof of ownership, or of the number of feet, etc., was error. But the document was identified as a paper filed with the clerk of the board of supervisors, and produced from its records, and was otherwise sufficiently authenticated; and it appears that the validity of the protest was allowed by the resolution of the board of supervisors read in evidence; though, indeed, we do not think the latter proof was essential. It was sufficient that there was on file ‘ ‘ a written objection purporting to be signed by the owners of a major frontage of the property fronting on [the] proposed work or improvement.” and that it did not affirmatively appear that it had been dis

p. 176

allowed as a bar by the board “because, in its judgment, said objection had not been legally signed by the owners of a majority of said frontage.” (Street Imp. Act., sec. 3, Finlayson’s ed., p. 9.) The only other objection of the appellant is the admission of the testimony of the deputy clerk to prove that there was no other resolution of intention passed by the board than that introduced in evidence. But this testimony was proper. The negative could be proven otherwise only by introducing the voluminous records of the proceedings of the board, and parol testimony was therefore admissible. (Code Civ. Proc., see. 1855, subd. 5.) The case, we think, cannot be distinguished from Thomason v. Carroll, cited above, and clearly comes within the authority of the decision in that ease and in City Street Imp. Co. v. Babcock, 123 Cal. 205 , and Pacific Pav. Co. v. Reynolds, 62 Pac. Rep. 212 .

We advise that the judgment and order appealed from be affirmed.

Gray, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Henshaw, J., McFarland, J., Temple, J.

Cases cited

Thomason v. Carroll 132 Cal. 148 Cal. 1901-03-11 p. 174, p. 175
City Street Improvement Co. v. Babcock 123 Cal. 205 Cal. 1898-12-30 p. 176