Dyer v. North

By the Court, Belcher, J.: This is an action to recover a street assessment in the City of San Francisco. The plaintiff took judgment by default and the defendant has appealed. The first point made is that the Court never acquired jurisdiction of the person of the defendant, because no summons was issued upon the complaint. On the same day that the complaint was filed, the attorneys, who appear for the appellant in this Court, filed in the action a notice that “ we have been retained by, and hereby appear for, the above named defendant in the above entitled action.” [160] This was a sufficient appearance, and was a waiver of summons. (Practice Act, Sec. 22.) It is next objected that the complaint does not state facts sufficient to constitute a cause of action, nor to sustain a decree based thereon, because it does not appear from tire complaint that the publication of the first resolution or notice of the intention of the Board to order the improvements to be made was by the authority of the Board. The statute (Acts 1863, p. 525,) authorizes the Board of Supervisors to order work to be done “ after notice of their intention so to do, in the form of a resolution describing the work, and signed by the Clerk of said Board, has been published for a period of ten days.” The complaint alleges that a resolution to do the work, in all respects in the form prescribed by statute, was passed by the Board on the 25th day of October, 1869, and that the “said resolution was dulyjúgned by the Clerk of said Board, and was afterwards published ” in the official newspaper of the city “for ten days, commencing on the 27th day of October, 1869, and continuing thence for ten consecutive days (Sundays excepted).” As a question of pleading we think this sufficient. The averment is as broad and full as the language of the statute under'which the proceeding was taken. Whether, as a matter of fact, the publication should be ordered by the Board, is a question upon which the Judges of this Court were not agreed in Chambers v. Satterlee, 40 Cal. 497, and upon which we are not now called upon to express an opinion. ■ The next point is, that the action should have been brought in the name of the City and County of Ban Francisco, under the provisions of the Act of April 4th, 1870; This point was presented and very fully argued in Dyer v. Pixley, ante, p. 153. After great consideration we came to a conclusion [161] adverse to the views now urged by the appellant, and we still adhere to the decision then made. The last point which we deem it necessary to notice is, that the Board of Supervisors had no jurisdiction, under the statute, to order the proposed improvement to be made, it being upon a street west of Larkin street, except upon receiving a petition for that purpose from a majority of the owners of the property in the adjacent blocks. In Doble v. Wood, decided from the Bench at the January Term, 1871, this Court held that the Board of Supervisors had jurisdiction to order a street to be graded in any part of the city, without a petition first presented for that purpose, except when it was proposed to partially grade or improve a street west of Larkin street without reference to its official width or grade. The limitation named was considered to be the only limitation upon the power of the Board imposed by the tenth section of the Act of 1863. The other points do not require special notice. Judgment affirmed.