From Casetext: Smarter Legal Research

Warren Malley v. Rusell

Supreme Court of California,Department Two
Jul 30, 1900
129 Cal. 381 (Cal. 1900)


S.F. No. 1226.

July 30, 1900.

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.C.B. Hebbard, Judge.

The facts are stated in the opinion of the court.

J.E. Russell, for Appellants.

J.C. Bates, for Respondent.

Action to enforce a street assessment for grading Greenwich street from Polk to Franklin street. Judgment went for plaintiffs, from which and from an order denying a new trial the defendant appeals.

We see nothing in the record to overcome the prima facie case made by respondent by the introduction of the assessment, warrant, and accompanying documents. There are some affidavits printed in the transcript which form no part of the record.

The contention of appellants that the grade had not been fixed at the crossing of Polk and Greenwich streets because there were a few feet of private land there, even if true, does not affect this case, because that crossing is outside of the work ordered to be done. The work ordered to be done in this case was "between Polk and Franklin streets."

It does not appear that the official grade of Greenwich street between Polk and Franklin had been fixed prior to May, 1894, the time mentioned in the complaint; therefore, there is no question here about a change of grade without a petition of a majority of those owning the land on the street.

The protest asserted by appellants was not within the ten days prescribed by the street law (Stats. 1891, sec. 3, p. 197); therefore it was of no consequence, and gave no jurisdiction in the permises to the board of supervisors.

Appellants object to the sufficiency of a certain notice given by the superintendent of streets that a resolution of intention had been passed by the board of supervisors. The objection is that the figures designating a certain day of April were so obscurely printed that it cannot be determined what they are, and that the last figure of the year is also too faint to be seen. We hardly think that the said obscurities in the printed notice would mislead anyone; but the resolution of intention involved in this case is not set forth in the record, and it does not appear that the said published notice had reference to the resolution of intention under which the work was ordered.

There is nothing in the point that a lien for street work is not assignable. In this case the original contractors assigned the contract to the respondent, who did the work. The street law contemplates the assignment of the contract, and the lien follows the completion of the work by the assignee. We see no other points necessary to be noticed.

The judgment and order appealed from are affirmed.

Temple, J., and Henshaw, J., concurred.

Hearing in Bank denied.

Summaries of

Warren Malley v. Rusell

Supreme Court of California,Department Two
Jul 30, 1900
129 Cal. 381 (Cal. 1900)
Case details for

Warren Malley v. Rusell

Case Details

Full title:WARREN MALLEY, Respondent, v. JAY E. RUSSELL et al., Appellants

Court:Supreme Court of California,Department Two

Date published: Jul 30, 1900


129 Cal. 381 (Cal. 1900)
62 P. 75

Citing Cases

Thomason v. Carroll

Section 3 of the act requires the notice "to be published for six days." It was held in Warren v. Russell,…

Buffum v. Stokes

Upon the assignment of the tax bills or assessment certificates, the lien passes and may be enforced in the…