Buckman v. Landers

Harrison, J.

Action upon a street assessment in San Francisco. The finding of the court that Army street, upon which the work in question was done, is a public street is not specified in the statement as unsupported by the evidence, and the finding must therefore be accepted as correct.

Section 12 of the street law (Stats. 1889, p. 168) declares: “ The warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, shall be held prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment, and diagram are based, and like evidence of the right of the plaintiff to recover in the action.” In the absence of any other evidence, the prima facie character of this evidence was sufficient to sustain the finding of the court that the agent of the plaintiff went upon the lot assessed, and, while there, publicly demanded payment of the assessment. (Himmelmann v. Hoadley, 44 Cal. 213; Dyer v. Brogan, 57 Cal. 234.) The testimony that no personal demand was made upon the defendants did not impair the statement in the affidavit that demand was made upon the lot.

An appeal from the assessment that had been originally made for the work by the superintendent of streets was sustained by the board of supervisors, and the assessment set aside; and the assessment upon which the present action was brought was thereafter made by the superintendent in accordance with the directions of the board of supervisors. It is now contended by the appellants that this assessment is invalid, for the reason that certain lots which should bear a portion of the expense of the work are not included therein. The appellants herein could, however, have appealed from this assessment, and could have had the error, if it was such, corrected upon such appeal by the board of supervisors. (People v. O’Neil, 51 Cal. 91.) Their failure to so appeal deprives them of the right to assign such error in an action to enforce the assessment. The mere omission from the assessment of one of the lots fronting upon the street does not of itself render the assessment void upon its face. ' (McDonald v. Conniff, 99 Cal. 386; Dowling v. Conniff, 103 Cal. 75; Warren v. Riddell, 106 Cal. 352.)

The assessment was prima facie evidence that the contractor had fulfilled his contract to the satisfaction of the superintendent of streets, and, in the absence of any other evidence, the court was authorized to find in accordance therewith. The prima facie character of this evidence was not overcome by the certificate of the engineer. (Williams v. Savings etc. Soc., 97 Cal. 122.)

The record shows that the work was completed within the time fixed for its completion by the superintendent of streets and the subsequent extensions thereof authorized by the board of supervisors. It does not appear at what time the superintendent indorsed these extensions upon the contract, and the prima facie character of the documentary evidence introduced includes the “regularity and correctness” of his acts. It was not requisite that he should indorse an extension upon the contract before the expiration of the time originally fixed therein. (McVerry v. Boyd, 89 Cal. 304; Ede v. Knight, 93 Cal. 159.)

The judgment and order are affirmed.

Garoutte, J., and Van Fleet, J., concurred.