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Bays v. Lapidge

52 Cal. 481 Court Cal. Docket No. 5701 English

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p. 481
[No. 5701.]
JOHN BAYS v. WILLIAM F. LAPIDGE et al.

Headnote

Plaintiff in Action to Enforce Lien.—The contractor or his assigns are the only persons authorized to maintain an action to enforce the lien of an assessment on a lot for the improvement of a street in San Francisco.
Appeal from the District Court, Third Judicial District, City and County of San Francisco.
The plaintiff, in his complaint, averred that on the 22nd day of December, 1874, the Superintendent of Streets in San Francisco issued an assessment to cover the expense of constructing a brick sewer, with man-hole and cover, in Valencia Street, from Eighteenth to Nineteenth, in San Francisco, and that the assessment, to the amount of one thousand eight hundred and forty and seventy-six one-hundredths dollars, was a lien on a lot owned by defendant on said street; and that the assessment
p. 482
was recorded by the Superintendent in vol. 65 at p. 63 in the records required to be kept by him. There was no copy of the contract in the complaint. The defendant demurred to the complaint, but the Court overruled the demurrer. Judgment was rendered enforcing the lien, and the defendant appealed. The other facts are stated in the opinion.
W. W. Cope and Crane & Boyd, for the Appellants.
E. F. Preston, for the Respondent.

As to the right of plaintiff to sue—this is a part of the prima facie case of plaintiff, because the statute requires that the assessment shall refer to the contract, etc. (Sec. 9, stat. 1871-2, p. 813.) And this Court has held that the contract is thereby made a part of the assessment. (Dyer v. Barstow, 50 Cal. 654 .)

“ The contractor or his assigns ” are the only persons authorized to sue. (Act 1871—2, p. 816, s. 13.) The complaint failed to state that the plaintiff occupied either of these relations to the proceedings, and the case is not distinguishable in principle. from that of The People v. Doe, 48 Cal. 560 .

Judgment and order denying a new trial reversed, and cause remanded, with directions to the Court below to sustain the demurrer to the complaint.

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