Summary
In Parker v. Reay, 76 Cal. 105, we held that where the assessments -- one valid, the other void -- were severed, and separate demands were made, the contractor was entitled to recover the amount of the valid assessment.
Summary of this case from Ede v. KnightOpinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
The assessment for the crossing at Scott and Tyler streets should have been against the easterly one half of the lot, and there should have been a division of the lot on the diagram showing what portion was assessed. (Act of April 1, 1872, sec. 8, subd. 3.) The demand was for too much, and plaintiff cannot recover. (Dyer v. Chase , 52 Cal. 441; Schirmer v. Hoyt , 54 Cal. 280; Donnelly v. Howard , 60 Cal. 291.) The assessment was not made in conformity with the statute, and is therefore void. (Act of April 1, 1872, sec. 9; Dyer v. Harrison , 63 Cal. 448.)
George E. Lawrence, for Appellant.
D. H. Whittemore, for Respondent.
JUDGES: Paterson, J. Searls, C. J., and McKinstry, J., concurred.
OPINION
PATERSON, Judge
1. The assessments levied against lot 13 are separately made and particularly defined in the assessment list. The lot was properly assessed the sum of $ 647.41 for the construction of gutter-ways and macadam. The other assessment, $ 62.90, for the crossing on Scott and Tyler streets, should have been made against the east one half of the lot, and the diagram ought to have shown what portion was assessed. (Stats. 1871-72, sec. 8, subd. 3, p. 810.) This portion of the assessment was void, and the demand therefor [18 P. 125] was invalid; but the assessment for macadam and gutter-ways having been made separately and for the proper amount, and the proper demand having been made, as shown by the return, the motion for a nonsuit was properly denied, notwithstanding the invalidity of the assessment for work on the crossing.
2. The specifications as to the insufficiency of the evidence are too general. That "the evidence is insufficient, -- 1. To sustain the first finding of fact; 2. Or the second finding of fact; 3. Or the third finding of fact," etc., -- is not a specification of "the particulars in which such evidence is alleged to be insufficient," within the meaning of section 659 of the Code of Civil Procedure. (Eddelbuttel v. Durrell , 55 Cal. 277.) We cannot, therefore, consider the point made by the appellant, that the evidence does not support the finding as to the amount due and unpaid.
3. The findings support the judgment.
Judgment and order affirmed.