Cavanagh v. Shaver

STURTEVANT, J. The plaintiffs commenced an action against the defendants to recover a judgment for money. Although the plaintiffs’ complaint is out of the ordinary, it may be said to be a complaint as for money had and received. The plaintiffs had judgment in the trial court and the defendants have appealed, bringing up papers which they claim to be a judgment-roll and a bill of exceptions. No motion to dismiss has been made, neither has a suggestion of the diminution of the record been made, and we therefore treat the record as sufficient. *760 [1] It was the theory of the plaintiffs in the trial court that they were called upon to pay, and that they did pay, without authority of law, a penalty of fifty per cent to redeem from a sale had in a street opening proceeding. The appellants claim the right to collect the penalty by reason of some language contained in section 16 of that act (Stats. 1889, p. 70) read in connection with section 3779 of the Political Code as that statute was formerly worded. The part of section 16 referred to reads as follows: “All provisions of the law in reference to the sale and redemption of property for delinquent state and county taxes in force at any given time, shall also then, so far as the same are not in conflict with the provisions of this act, be applicable to the sale and redemption of property for delinquent assessments hereunder, including the issuance of certificates and execution of deeds.” Section 3779 of the Political Code at the same time was worded as follows: “On filing the certificate with the County Recorder, the lien of the state vests in the purchaser, and is only divested by the payment to him, or to the County Treasurer for his use, of the purchase money and fifty per cent thereon.” But section 3779 of the Political Code was repealed by Statutes of 1895, chapter 11, section 8, and by chapter 218, section 59. However, the appellants claim that the appellants’ rights to the penalty were saved by Statutes of 1895, chapter 177, which provides: “Sec. 1. All sales, and redemption after sale, of any real property upon which the assessment levied and assessed to pay the damages, costs, and expenses of or incident to laying out, . . . any street, . . . shall be made and had in the same time and manner as such sales and redemption were required by law to be made and had on the first day of January, A. D. 1895.” It will be noted that the saving statute does not mention penalties at all. It will also be noted that the language used by the legislature is quite different from the language used in the Street Opening Act of 1889. The appellants make the claim as though the saving statute were worded as follows: “All provisions of the law in reference to the sale and redemption of property for delinquent state and county taxes in force January 1st, 1895, shall, so far as the same are not in conflict with the provisions of this act, be applicable to the sale and redemption of property for delinquent assessments, etc. ’ ’ But there *761 is a patent difference between the language used and meaning which the appellants would attach to the language. The saving statute saves the procedure as to “time and manner, ’ ’ but does not purport to save a penalty of fifty per cent. It must at all times be borne in mind that tax proceedings are in invitum and purely statutory and afford no opportunity for invoking any of the principles of equity. (City of Petaluma v. Hughes, 37 Cal. App. 473, 475 [174 Pac. 336].) In the instant case the penalty is not specifically mentioned in the statute under which the appellant claims. In the case of Collier v. Shaffer, 137 Cal. 319 [70 Pac. 177], the court construed the provisions of sections 3756 and 3817 of the Political Code as those sections stood in 1889. Section 3756 expressly provided a five per cent penalty. Section 3817 referred to a “twenty-five per cent penalty, which may have accrued by reason of such delinquency and sale ...” The court held that section 3756 was the declarative law as to what penalties were imposed and that section 3817 misused the number 25 for the number 5. The case shows that the courts have not gone out of their way to adopt a construction imposing penalties. That we should not do so in the instant case is further strengthened by provisions of section 16 of chapter 76 of the Statutes of 1889, which we have not heretofore referred to. The greater part óf that section is taken up in providing for a five percent penalty which is imposed by the terms of the statute on each delinquent assessment. If the legislature had meant to impose other penalties certainly apt words would have been used to express that meaning. On the other hand, it used language excluding such an intention. Having provided a five per cent penalty it then adopted statutes concerning delinquent state and county taxes, “ ... so far-as the same are not in conflict with the nrovisions of this act ...” The two expressions are not harmonious. The appellants were not entitled to charge a fifty per cent penalty and are not entitled to retain the same. [2] The appellants in this court take the position that whether the judgment of the trial court was just or otherwise, it should be reversed for certain alleged errors. They claim that the plaintiffs’ complaint did not state a cause of action; that they raised the question by demurrer and that their demurrer was improperly overruled. Their point *762 is this, that the complaint does not flatly allege that the defendants received the money. The complaint is certainly not very clear in this behalf, but after the demurrer was overruled the defendants filed an answer in which, among other things, they pleaded as follows: “Defendants allege that the said sum of $9,065.53 referred to in said amended complaint has never come to the possession of said defendants or to the possession of any official of said defendant, the city of Petaluma, or into the possession of anyone for or on behalf of said defendants or either of them . . . ” After the trial was had the trial court made findings, “That the said sum paid by plaintiffs to said defendant E. S. Shaver as such official, on said 22d day of October, 1915, to wit, the sum of $9,065.53, was paid by them under protest and duress, and to prevent the clouding of their titlé to said lots; that all sums and amounts in excess of $5,727.64 exacted by defendant E. S. Shaver as such official, of plaintiffs, and paid under protest by them to said defendant, were and are illegal.’’• And thereupon the trial court awarded judgment for the difference, to wit, $3,337.85. In the bill of exceptions there is no showing or attempt to show that the trial court prevented the appellants from making a full and complete showing on the question of receiving or not receiving money. Conceding that the plaintiffs’ complaint was not as broad as it should have been, the defect was cured by the answer of the defendants, and the record shows that the defendants were not prejudiced. (Code Civ. Proc., sec. 475.) The record shows that the money was not received on October 22, 1915, but that it was received on July 6, 1918. The record does not show when the action was commenced; but it does show that the action was commenced before July 6, 1918. The appellants strenuously contend that the action was prematurely commenced, and that the judgment should be reversed. Conceding that the action was prematurely commenced, but examining the whole record, it is patent that the rights of the appellants were in-no manner prejudiced because of that fact. We think that the judgment should not be reversed because of alleged errors which were not prejudicial. (Mahony v. Standard Gas Engine Co., 187 Cal. 399 [202 Pac. 146].) *763 [3] The appellants assert that the evidence does not show that the money alleged to have been deposited in bank ever came to the hands of the defendants, or either of them, or was ever claimed by them or either of them. In so far as E: S. Shaver, or E. S. Shaver, as superintendent of streets, is concerned, the contention is well founded. As to the city of Petaluma, the contention is not sustained by the record. The certificate of deposit was offered in evidence and on it appears the indorsement, “Paid 7/6/18,” and also the indorsement, “James A. Potter, Superintendent of Streets and Street Superintendent of the City of Petaluma and successor in office to E. S. Shaver.” During the second hearing the question of the payment of the certificate being under discussion, Mr. Hall, attorney for the appellants, admitted that the certificate of deposit had been paid after the judgment in the Hickey suit, which judgment held that the tender was good. It is therefore clear that the city of Petaluma received the money although it is equally clear that the defendant E. S. Shaver did not receive it. He had gone out of office and his successor in office received the money, but the successor in office has not been made a party to this litigation. As he has not been made a party he has not had his day in court and no judgment should have been entered as against Potter. As the record does not show that Shaver received any part of the money, no judgment should have been entered as against him. The appellants claim that the deposit was not made under duress. We think they are mistaken. True, the title of the plaintiffs had already been clouded at the time of the tender. But in the absence of the payment, the plaintiffs ’ title would have been permanently lost. [4] The appellants claim that the trial court had no jurisdiction to grant a new trial. In making this contention we understand them to rely upon the rule stated in Gray v. Cotton, 174 Cal. 256 [162 Pac. 1019], and Stow v. Superior Court, 178 Cal. 140 [172 Pac. 598]. We think that this case is not controlled by either of said cases, but that the latter case is more nearly in point, and in that event the trial court did not exceed its jurisdiction in granting the so-called motion for a new trial. It might be better said that the trial court was merely remarking that it took a different view of the pleadings than it entertained on a *764 previous date, and was hearing the case for the first time; or, to put it another way, that it had inadvertently exceeded its jurisdiction on the former occasion when the plaintiffs were not awarded a trial, and that the matter was being cured by having a formal trial on the latter date. The first step in the proceedings is, by one of defendants’ attorneys, called a motion for judgment on the pleadings, by another of defendants’ attorneys it is called a motion for a nonsuit. It is not clear that the first trial was not a trial on the merits. True, the plaintiffs had not alleged “that the defendants had and received” any money; but the defendants, in their answer, inserted an allegation that they had not “had and received the money.” The averment of the answer was deemed denied by virtue of the provisions of section 462 of the Code of Civil Procedure. In the face of such a record the defendants had no right to move for judgment on the pleadings. (McGowan v. Ford, 107 Cal. 177 [40 Pac. 231].) To avoid the rule in that case the defendants at the hearing on April 11, 1918, made certain statements to the trial court which were taken and acted on as evidence. The trial court so considered the record as appears from the record. These, and other matters, tend to show a trial of the case on its merits. (Code Civ. Proc., sec. 582.) Moreover, we are of the opinion that the appellants are not in a position to press this point. It is shown by the record that on April 11, 1918, the cause was called for trial. At that time the appellants took the position as stated by the judge of the trial court: “Shaver has never gotten it and he says he has never gotten it, does not want it, would not have it. It appearing that the defendants each and all disclaimed any interest whatever in the fund,” etc. Judgment was thereupon ordered in favor of the defendants. Before the judgment was signed or filed, to wit, on July 6, 1918, the city officials proceeded to collect the money and have ever since retained it. In view of the acceptance of the moneys by the defendant city, we think the city is not prejudiced when it is denied permission to change its position back to where it originally stood. The foundation was very imperfectly laid for the introduction in evidence of the certificate of deposit, but the objection to its introduction was equally faulty. The proceedings *765 were as follows: “Mr. Mooney: I have also here a certificate of deposit which was made by the plaintiffs in this action and which has since been cashed in by the city. Is there any objection to that? Mr. Dole: That is objected to as incompetent, irrelevant, immaterial, and hearsay. . . . The Court: I do not think it is hearsay.” We find nothing in the record as to the proof of signatures on the certificate but such objection was never made nor called to the attention of the trial court. The appellants therefore are not entitled to have this court consider matters which were never before the trial court. No other points are made which call for our consideration. The judgment as to B. S. Shaver and B. S. Shaver as superintendent of streets is reversed, and the judgment as to the city of Petaluma is affirmed. Nourse, J., and Langdon, P. J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 4, 1922. All the Justices concurred except Waste, J., who was absent. Richards, J., pro tern., who was acting, dissented. Wilbur, J., likewise dissented and filed the following opinion: