Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Sacramento County. A. P. Catlin, Judge.
COUNSEL:
The city council or trustees did not determine the work, and did not acquire jurisdiction of the subject matter. The proceedings are void on their face. (Bolton v. Gilleran , 105 Cal. 244; 45 Am. St. Rep. 33; San Jose etc. Co. v. Auzerais , 106 Cal. 498.) The complaint alleges that the work is to be completed according to specifications hereunto annexed and made a part of this contract, and none are to be found. Matters of substance must be averred (Los Angeles v. Signoret , 50 Cal. 298; approved in Burkett v. Griffith , 90 Cal. 542; 25 Am. St. Rep. 151), and each cause of action must be complete in itself. (Reading v. Reading , 96 Cal. 6.) The judgment is erroneous in allowing fifteen dollars attorney's fees for each lot. (General Street Law, sec. 12; Brady v. Kelly , 52 Cal. 371; Gillis v. Cleveland , 87 Cal. 218.) The complaint is fatally defective in not alleging that the return indorsed on the warrant was "signed by the contractor or his assigns, or some person in his or their behalf," or whether it was verified upon oath. (General Street Law, sec. 10; Perine etc. Co. v. Quackenbush , 104 Cal. 684.) The complaint is also defective in not alleging a proper posting of the notice inviting sealed proposals or bids for doing the work ordered. (General Street Law, sec. 5; Himmelmann v. Townsend , 49 Cal. 150.) The complaint alleges that there was a warrant signed and countersigned by respective officers, at some time, no date given, "and in the form provided for by section 9 of said act, authorizing and empowering B. Lohs, as such contractor, to demand and receive the several assessments." Such allegation is only a conclusion of law, and not sufficient to stand a general demurrer. (Shipman v. Forbes , 97 Cal. 572; Himmelman v. Danos , 35 Cal. 448; Libbey v. Elsworth , 97 Cal. 317; Wood v. Carpenter , 101 U.S. 134; American Mut. Aid Soc. v. Helburn , 85 Ky. 1; 7 Am. St. Rep. 571; Ormsby v. Louisville , 79 Ky. 197.)
J. C. Bates, for Appellant.
White, Hughes & Seymour, for Respondents.
The motion for new trial was properly denied, because of the insufficiency of the notice of intention, in not designating whether the motion would be made upon affidavits or the minutes of the court, or a bill of exceptions. (Code Civ. Proc., sec. 659; Hill v. Beatty , 61 Cal. 292.) It was defendant's right to preserve his exceptions in a bill of exceptions without regard to the question of new trial. (Code Civ. Proc., secs. 646- 53, 670.) Defendant's objections to the sufficiency of the allegations in the complaint should have been made in the lower court and by demurrer. The case has been tried on its merits, and any informalities or defects in the complaint have been cured by the verdict. (1 Chitty on Pleading, 673; Treanor v. Houghton , 103 Cal. 53; Hallock v. Jaudin , 34 Cal. 167; Hibernia etc. Soc. v. Ordway , 38 Cal. 679; Schluter v. Harvey , 65 Cal. 158.) If defendant now attempts to press, as an objection to the sufficiency of the complaint, that the specifications were not annexed, his contention is untenable. (Byrne v. Luning Co ., 8 Cal. Dec. 189.) The resolution of intention providing for curbing and "filling in behind the same to a distance not to exceed eight feet," sufficiently designates the work proposed. The judgment for attorney's fees of fifteen dollars for each lot was not erroneous, but, if so, it can be modified accordingly. (Gillis v. Cleveland , 87 Cal. 218.)
JUDGES: McFarland, J. Temple, J., and Henshaw, J., concurred.
OPINION
McFARLAND, Judge
Action to foreclose several liens for street assessments in Sacramento City. Judgment went for plaintiffs, and defendant appeals from the judgment and from an order denying his motion for a new trial.
The motion for a new trial cannot be considered, though that question is not of much consequence here, because nearly all of appellant's points are made on the alleged insufficiency of the complaint. The notice of motion for a new trial does not state what it will be based on; that is, it does not state whether it would be made upon affidavits, minutes of the court, bill of exceptions, or statement, as required by section 659 of the Code of Civil Procedure. Respondents are not estopped from making this point because they presented amendments to a certain bill of exceptions proposed by appellant and took part in the settlement of said bill. Appellant had the right to a bill of exceptions to be used on his appeal from the judgment; and an objection by respondents that his notice of motion for a new trial was defective would not have affected his right to have the bill settled. He could have waived his motion for a new trial and still have been entitled to his bill of exceptions. If this contention of appellant were about a statement on motion for a new trial it would present a different aspect. The respondents moved in the court below that the motion for a new trial be dismissed for the defect in the notice above stated.
The only questions in the case arise upon the judgment-roll -- that is, whether the complaint, to which no demurrer was interposed, is sufficient, after trial on the merits, to sustain the judgment, and whether the judgment grants any unauthorized relief.
Where there has been no demurrer, and the case has been tried on its merits, an appellate court will not reverse a judgment for plaintiff on account of alleged deficiencies of the complaint, unless it entirely fails to state material facts necessary to constitute a cause of action. Merely defective or imperfect statements of such facts will not warrant a reversal; they will be considered as cured by the verdict. (Treanor v. Houghton , 103 Cal. 53; Schluter v. Harvey , 65 Cal. 158; Hallock v. Jaudin , 34 Cal. 167; 1 Chitty on Pleading, 673.) In the case at bar [44 P. 1028] appellant makes many objections to the sufficiency of the complaint which we do not deem called upon to notice in detail; it is enough to say that the complaint as a whole states a cause of action upon which respondents were entitled to the judgment rendered. Indeed, it is not clear that any of the necessary averments can be considered as defectively or imperfectly stated. In answer to appellant's leading points, we may say that the complaint shows that the city council or board of trustees did sufficiently determine the work to be done so as to acquire jurisdiction; that the work was sufficiently described in the resolutions of intention; that it was not left to the discretion of the superintendent of streets to determine how much work was to be done, but that it was to be done in accordance with specifications prepared by the city surveyor and filed with the board, upon which the bids were made; that the posting of notice "at or near the office door of the said board of trustees" is a sufficient averment of a compliance with the provision of the law requiring the notice to be posted "on or near the council chamber door of said council"; and that the substance of the warrants and the returns thereon are sufficiently averred -- at least, in the absence of a demurrer and after trial, at which, it is presumed, all essential facts were proven.
Six different causes of action, arising out of assessment liens against six different lots belonging to appellant, are united, each being stated in a separate count. No objection is made that these different causes of action are improperly united; but in the judgment the respondents are given a statutory attorney's fee of fifteen dollars for each of the said six causes of action. Appellant contends that respondents are entitled under section 12 of the act (Stats. 1885, p. 157), to only one attorney's fee of fifteen dollars; and this contention must be sustained. The said section provides that "the contractor or his assignee may sue, in his own name, the owner of the land, lots, or portions of lots assessed. .. .; and in all cases of recovery under the provisions of this act, the plaintiff shall recover the sum of fifteen dollars, in addition to the taxable costs, as attorney's fees." This clearly means a fifteen dollar attorney's fee for each action, no matter how many causes of action it may include. The consideration that, if respondents had brought six separate actions and had recovered judgment in each, the burden of the costs against appellant would have been heavier, does not change the plain language of the statute. A plaintiff may, perhaps, sometimes consider that if he should bring several actions instead of one, and should be defeated, the burden of costs against him would be heavier. At all events, under the language of the statute, if he brings only one action he can get only one attorney's fee. The judgment will, therefore, have to be modified in this respect.
The order denying the motion for a new trial is affirmed; and the cause is remanded with directions to the superior court to modify the judgment by striking out the words and figures, "and for fifteen dollars attorney's fees," wherever they occur, except in the first subdivision of said judgment. The judgment as thus amended will stand affirmed.