Ferry v. O'Brien

The following portion of the opinion of the district court of appeal for the second appellate district, division one, covering the facts of the case, and decisive of the main issues arising upon the trial and upon appeal, is hereby adopted as the opinion of this court:

“This is an action to foreclose a lien claimed by reason of an assessment for street work alleged to have been done under contract pursuant to the procedure outlined in the street work act of 1885, commonly known as the ‘Vrooman Act’ [Stats. 1885, p. 147]. The defendant Winifred F. Marr appeals from the judgment.

“On the eighth day of February, 1915, the board of trustees of the city of Glendale adopted a resolution declaring its intention to order improvements as follows: That a bridge be constructed upon a portion of the roadway of Canada boulevard, across the Verdugo Wash, in that city; also that a channel 50 feet in width be graded in the Verdugo Wash from a point 150 feet northeasterly from the center point of the bridge to a point 585 feet southwesterly from the center point of the bridge; also that the banks of said channel be protected by levees, ‘said grading, protection work and bridge to be constructed in accordance with plans Number 171 and 172 and special specifications adopted for said work 'by said board of trustees. ’ The resolution declared that the contemplated work was of more than local or ordinary public benefit, and expressed the intention of the board to create an assessment district, including the territory benefited by the improvement and to be assessed to pay the costs and expenses thereof. It was stated in the resolution that the plans, profiles and specifications therein mentioned were thereby referred to ‘for a more particular description of said work and made a part hereof. ’ It was also declared to be the intention to issue serial bonds representing the as

sessments in accordance with, the provisions of the Street Bond Act of 1893 [Stats. 1893, p. 33] as then in force. The subsequent resolution ordering said work, and the notices thereof, followed the resolution of intention in its statement that said channel was to commence at ‘a point 150 feet northeasterly’ from the center point of said bridge. The plans referred to in said resolution of intention showed that said channel was to commence ‘at a point 1500 feet northeasterly from the center point of said bridge.’ The resolution was duly published, and thereafter it was ordered that the work be done. Notices inviting bids having been duly published, the contract for the work was entered into by plaintiff’s assignor as contractor, and the work was performed in accordance with the terms of the contract. That contract provided for the channel work to commence at a point 1,500 feet northeasterly from the center point of the bridge. In other words, the channel contracted for extended to and included a distance of 1,350 feet, as indicated in the plans, notwithstanding the fact that this portion of the work had been omitted from the resolution of intention and from the resolution ordering the work, and from the notices thereof. The work described in the contract having been completed and accepted, an assessment was made and a diagram and warrant were issued in the usual form and recorded on November 26, 1915. After demand made for payment nof assessments, as required by law, a return was made and recorded in due form. The assessment shown against the property of appellant was the sum of $81.60, and the return showed the same to be wholly unpaid.

“On the twenty-first day of February, 1916, pursuant to petition filed by and on behalf of the contractor and its assignee, the board of trustees duly adopted a resolution whereby it found and declared that said assessment was invalid for the reason that the ordinance and notices were incorrectly passed, published and given, as set forth in said petition, and set aside said former assessment and ordered the superintendent of streets to issue a new assessment and warrant for the costs and expenses of the said work which had been theretofore done, describing said work according to the description contained in the contract, and directed that a reassessment be made on the land in the district therein described, which the board by said resolution found and

declared to be that actually benefited by said improvement, and which was the same district described in the original resolution of intention; and further directed that said reassessment be based upon the special and peculiar benefit to the respective lots, pieces, and parcels of land assessed at the time of making the reassessment, and that this total amount should not exceed the total amount of the original assessment. In accordance with said resolution of February 21, 1916, reassessment was made conforming to the requirements of said resolution. This reassessment, together with the necessary diagram, was made, approved, indorsed, and filed. Thereupon the board of trustees fixed a time' for hearing on said reassessment and caused notice to be given and published of the time and place of the hearing, which notice described the work and the district on which the reassessment was made. At the time and place so fixed for said hearing, the board of trustees heard and considered the said reassessment and all objections thereto and adopted a resolution whereby it overruled and denied all objections to said reassessment, and approved and confirmed said reassessment as filed and presented. Thereafter, a warrant was issued and attached to the reassessment and after being recorded, these documents were delivered to the assignee of the contractor. After demand made in due form, upon the land of appellant, as well as upon the other premises covered by the reassessment, a return was made and recorded upon which it appeared that the assessment against appellant’s property was wholly unpaid. Thereafter the plaintiff prosecuted this action for the enforcement of the lien claimed against the property of appellant.

[1] “It seems to'be conceded that the original assessment was void by reason of the fact that the resolution of intention did not include in its description all of the work on account of which that assessment was made. The fact that the plans and specifications included more work than that which was directly described in the resolution of intention was not sufficient to extend the terms of the resolution so as to include such additional work. Such plans and specifications when prepared must conform to and be consistent with the description in the resolution of intention. {Fay v. Reed, 128 Cal. 357 , 361 [ 60 Pac. 729 ]; Bay Rock Co. v. Bell, 133 Cal. 150 , 152 [ 65 Pac. 299 ].)

“In Seattle v. Kelleher, 195 U. S. 357 [ 49 L. Ed. 232 , 25 Sup. Ct. Rep. 44 , see, also, Rose’s U. S. Notes], the following facts appeared: A street had been graded and sidewalks constructed for a distance including the frontage of the plaintiff’s land. An assessment was levied, but this was held to be void. The work included certain planking. When the improvement was ordered, by the charter of the city of Seattle the planking was to be paid for out of the general taxes. Thereafter a statute was adopted authorizing a new assessment in cases where the old one had been declared void, upon lands benefited, to the extent of their proportionate part of the expense of the improvement based upon its actual value at the time of its completion and having reference to the benefits received. Notice by publication of the time for hearing objections was provided for, with an appeal to the courts. By proceedings had in due form under this later statute, a reassessment was levied for the whole cost of the improvement, including the cost of said planking. The circuit court of the United States declared this assessment void under the fourteenth amendment, and enjoined the city against enforcing the same. This judgment was reversed by the supreme court. Responding to the objection based upon the fact that the planking was not authorized by the original ordinance under which the work was done, the

“In Londoner v. Denver, supra, which was a street assessment ease, the statutory proceedings included an order for the street improvement, which order, made by the board of public works, was to be based upon the petition of a majority of the owners of the frontage to be assessed. It was necessary that this order be followed by an ordinance of the city council. It was provided in the statute that the finding of the city council should be conclusive that a proper petition was filed. The supreme court of Colorado held that such finding was conclusive. The matter having been brought before the supreme court of the United States on writ of error, that court, in discussing this particular question, said: ‘The only question for this court is whether the charter provision authorizing such a finding, without notice to the land owners, denies to them due process of law. We think it does not. The proceedings, from the beginning up to and including the passage of the ordinance authorizing the work, did not include any assessment or necessitate any assessment, although they laid the foundation for an assessment, which might or might not subsequently be made. Clearly all this might validly be done without hearing to the land owners, provided a hearing upon the assessment itself is afforded. (Voight v. Detroit, 184 U. S. 115 [ 46 L. Ed. 459 , 22 Sup. Ct. Rep. 337 ]; Goodrich v. Detroit, 184 U. S. 432 [ 46 L. Ed. 627 , 22 Sup. Ct. Rep. 397 , see, also, Rose’s U. S. Notes].) The legislature might have authorized the making of improvements by the city council without any petition. If it chose to exact a petition as a security for wise and just action, it could, so far as the federal constitution is concerned, accompany that condition with a provision that the council, with or without notice, should determine finally whether it had been performed. ’ We think that in the case at bar there was a valid reassessment.

[4] “ At the commencement of the trial the appellant objected to the introduction of any evidence on the ground that the complaint did not state a cause of action since ‘the complaint sets out a warrant containing notice that bonds would issue for all assessments over twenty-five dollars remaining unpaid for over thirty days; the assessment pleaded is dated

The point of departure, as between the conclusions arrived at by the district court of appeal and those reached upon rehearing in this court, has reference to the question last above considered touching the' sufficiency of the plaintiff’s complaint in the absence of an averment that a bond had not issued covering the defendant’s assessment, or that the owner of the property assessed had ordered that no such bond should issue. The appellant insists that this omission from the complaint is fatal upon her appeal from the judgment. Conceding, though not deciding, that the burden was upon the plaintiff to allege the nonissuance of a bond covering the amount of the defendant’s assessment as a prerequisite to the existence of his lien and of his right of action to foreclose the same for such assessment, and conceding that the defendant’s objection to the sufficiency of the complaint in that regard, made for the first time at the opening of the trial of the cause, was, nevertheless, timely, it does not therefore follow that there must or should be a reversal of the judgment herein on that ground. The alleged error of the trial court in refusing to sustain said objection was an error as to a matter of pleading. It was also an error, if it be such, touching a question concerning which pleaders might reasonably differ and regarding which the trial court may excusably have been mistaken, in view of the conceded fact that the question of pleading involved is one of first impression and as to which no direct authority has been cited. For both of these reasons it is made the duty of this court under section 4% of article VI of the constitution to make an examination of the entire cause, including the evidence, for the purpose of determining whether the error complained of has resulted in a miscarriage of justice, before we are permitted to set aside a judgment on the ground of an error as to a matter of pleading. We have made such examination and have approved and adopted the decision of the district court of appeal as to the main and meritorious issu.es of law and fact in the case.

This being the state of the record, if, in fact, a bond had 'been issued and was outstanding when the plaintiff commenced and was prosecuting his action, that fact, if proven, would of itself have been fatal to said action, and would, if shown in evidence, have entirely avoided the necessity of any other or further defenses to said action, and would have also avoided the prolonged trial and the elaborate proofs and defenses presented therein. It is inconceivable that, under such circumstances, the defendant, with this fatal weapon in her hands, should have refrained from using it because of the doubtful question as to which of the parties should have pleaded the issuance or nonissuance of such bond. The conclusion would seem to be irresistible that no such bond had in fact' been issued—that the defendant had no such weapon with which to utterly defeat the plaintiff’s action—and, hence, resorted to the other defenses which her answer contains and which her offered proofs went to sustain.

This being the state of the record, and the" evidence otherwise showing that the plaintiff was justly entitled to the foreclosure of his assessment lien, we cannot hold that the mere error of the trial court, if it were such, in a matter of pleading should be permitted to be successfully urged

The judgment is affirmed.

Shurtleff, J., Sloane, J., Wilbur, J., and Lawlor, J., concurred.

Shaw, C. J., being disqualified by relationship to plaintiff’s attorney, did not participate.

Rehearing denied.

All the Justices concurred, except Shaw, C. J., who did not participate, owing to relationship to attorney for respondent.

Waste, J., was absent and Richards, J., pro tem., was acting.