Buckman v. Hatch

HENSHAW, J. This action was to foreclose the lien of a street assessment. Defendants answered without demurrer, and judgment passed for plaintiff. Defendant. Nicol appeals from the judgment upon the judgment-roll alone. The principal point which he here urges is, that the complaint does not state facts sufficient to constitute a cause of action. This point is not waived by the failure to demur, nor is it cured by verdict or judgment. (Code Civ. Proc., sec. 434; Hurley v. Ryan, 119 Cal. 71; Bane v. Peerman, 125 Cal. 220; Locke v. Klunker, 123 Cal. 231; Hopkins v. Warner, 109 Cal. 133; Fay v. Reed, 128 Cal. 357.) The allegation of the complaint in question is as follows:— *56 18, 1885, and the acts amendatory thereof and supplementary thereto, the following proceedings were duly had and taken, to wit:— *55 ‘1 That under and in pursuance of said act, approved March *56 “That on the eighth day of July, 1895, the board of supervisors of said city and county, at a regular meeting thereof, duly made and passed a resolution, to wit, resolution of intention No. 12,603, describing the work, wherein and whereby said board resolved that it was their intention to order the following work in said city and county to be done and improvement to be made, viz.:— “That Corbett Avenue, from the easterly line of Clara Avenue to the southerly line of the crossing of Corbett Avenue and Caselli Avenue, be graded to the official line and grade; that redwood curbs and rock gutterways be constructed thereon, and that the roadway and sidewalks thereof be macadamized; that three cesspools and culverts be constructed on the crossing of Corbett Avenue and Caselli Avenue, and that a cesspool and culvert be constructed on Corbett Avenue at each of the following points, viz.: On the southwesterly and northwesterly corners of Clara Avenue; on the southwesterly corner of Hattie Street; on the northwesterly corner of Corbett Place; on the southwesterly corner of Danvers Street; on the westerly corner of Mars Street, and on the southeasterly corner of Moss Avenue; and that a cesspool, with culvert and grating, be constructed on the northerly curb line of Corbett Avenue, opposite Hattie Street, and on the northerly curb line of Corbett Avenue, opposite Danvers Street; and that an 18-inch iron-stone pipe sewer be constructed in the southerly portion of the intersection of Hattie Street and Corbett Avenue and on the southerly portion of the intersection of Corbett Avenue and Danvers Street.” It is plain that the resolution of intention here pleaded does not describe the work as required by section 3 of the Improvement Act. Under numerous decisions of this court the insufficiency of such a resolution to confer jurisdiction is declared, and, as a consequence, the board failed to obtain jurisdiction to order the work, and the assessment therefor created no lien upon the property. (Schwicsau v. Mahon, 128 Cal. 114; Williamson v. Joyce, 137 Cal. 107.) Indeed, it is not here contended that the resolution of intention as pleaded is sufficient to confer jurisdiction, but respondent *57 urges that his allegation that the resolution of intention was “duly made and passed,” and the subsequent averment that the board “duly gave and made and . . . passed ... its order and resolution . . . ordering said work to be done, and thereby gave and made its determination to order the said work done”; and the further allegation that the board, “by its order and resolution of award . . . duly given and made and passed therefor, did duly award the contract for said work”; and the final averment, to the effect that “all and singular the proceedings aforesaid and determinations of said boards and officers hereinbefore referred to, and each of them, including those of said contractor and of his agents and assigns, were each and all duly given and made, and each and all of the acts aforesaid were duly performed within the time and in the manner required by law,” are sufficient, in the absence of demurrer and after judgment found, to cure this particular defect in the complaint. Herein reliance is had upon section 456 of the Code of Civil Procedure, which provides: “In pleading a judgment, or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction.” It is not now necessary to determine whether the resolution of intention passed by the board partakes sufficiently of the nature of a judgment or “other determination of a board” judicial in its character, to bring the pleading of it within the purview of the section. Conceding that it is within its contemplation, all the advantage that the plaintiff acquires by this brief form of code pleading is a relief from the necessity of pleading jurisdictional facts (Weller v. Dickinson, 93 Cal. 108), or, as applied to this particular resolution of intention, the complaint is sufficient to show that the board acquired jurisdiction to adopt a resolution of intention. A pleading that any judgment is duly given and made means this, and no more than this: that the court had jurisdiction to render a judgment, but the judgment as rendered by the court may, in and of itself, be a nullity. Its voidness may appear upon its face, and, if so, it cannot form the basis of a cause of action. Or it may appear from the judgment it *58 self that it confers no right of action upon the plaintiff. A judgment of imprisonment for debt would be void upon its face, or if .A, seeking to recover from B, should plead, with other proper averments, that the court, duly made and gave its judgment, whereby it was adjudged that one hundred dollars was due from A to B, such a judgment could not form the foundation of an action for recovery upon the part of A against B. It would appear upon the face thereof that the right of action was in B. So here, the utmost that the pleader has shown is, that the board acquired jurisdiction to pass its resolution of intention, but by the same allegation he establishes that the resolution of intention which, in fact, the board did pass was void and wholly insufficient to confer upon it jurisdiction to make its subsequent orders and award. Nor can the allegations above quoted, that all and singular the proceedings and orders were ‘‘ duly given and made, ’ ’ countervail against this radical defect. Every intendment of pleading and every presumption that can arise must perforce give way to the paramount fact shown by the complaint itself, that" the resolution of intention which the board actually passed was insufficient to confer upon it jurisdiction to proceed further in the matter. The judgment appealed from is therefore reversed. McFarland, J., Van Dyke, J., Lorigan, J., and Beatty, C. J., concurred.