APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. B. N. Smith, Judge. The facts are stated in the opinion of the court. Jones & Weller, and Davis, Rush & Willis, for Appellant. Ross Avery, and Anderson & Anderson, for Respondent. SMITH, J.-Appeal from a judgment for the plaintiff and an order denying the defendant's motion for a new trial. The plaintiff is the owner of a building and lot fronting on Los Angeles street adjoining the Huntington building, which extends from Los Angeles street to Main street and abuts on the north on Sixth street; and brought this suit for damages to his building and other property on his lot from fire, alleged to have been caused by the negligence of the defendant's servants, who at that time were engaged in working on the Huntington building. There was no direct proof of the origin of the fire, which occurred in the early hours of the 6th of October; but it appears from the evidence that the work on which the defendant's employees were engaged required the use of rivets heated to a white heat, which were habitually thrown from the heater to the riveter and caught by the latter in a bucket. It sometimes happened, however, that the rivets were not caught, but, while the men were working on the south side of the building, would sometimes fall over the line onto the land of the plaintiff, or the land of his neighbor adjoining on the rear. It was in proof that this happened twice on the morning of the 5th, between the hours of 10 and 12 o'clock, the rivet falling on one occasion on the lot adjoining just to the rear of plaintiff's lot, and on the other across the fence on his lot; and on each occasion a fire was started, which was extinguished by the defendant's employees. Evidence of similar occurrences upon other occasions before and after the fire was also given. The plaintiff's theory is that the origin of the fire in question was similar to that of the fires that had occurred, and much evidence was introduced to exclude the probability of its having originated otherwise, The re Numerous points are urged by the defendant, but we think they are all untenable. The evidence as to the origin of the fire was, indeed, circumstantial only; but it was not on that account inadmissible (Code Civ. Proc., sec. 1832); and we think it was sufficient to sustain the verdict. The instruction complained of does not instruct the jury as to the weight of evidence, but simply that they were to consider the facts in evidence "in determining whether or not the fire referred to in the complaint ... was due to the same cause." Nor did the court refuse to instruct the jury that “defendant's employees were entitled to due credit as witnesses." quest of the defendant was that the jury should be instructed "to receive the testimony of such witness ... the same as that of the testimony of any other witness, and to determine the credibility of such employee by the same principles and tests by which they would determine the credibility of any other witness''; which would have been manifestly erroneous. There are some other objections on the part of appellant, but we deem it unnecessary to consider them. On the whole we find no error in the record. The judgment and order appealed from are affirmed. Allen, J., and Gray, P. J., concurred. (Civ. No. 202. Second Appellato District.-June 30, 1906.] CITY OF LOS ANGELES, Respondent, v. HUGH GLAS. SELL and ANDREW GLASSELL, Executors, etc., ACTION TO RECOVER CITY TAXES—PLEADING-SUFFICIENCY OF COMPLAINT. A complaint by a city to recover municipal taxes from the executors 1 o'clock noon, on the first Monday in March of the year of assessment, sufficiently states a cause of action. ID.-PROOF OF ULTIMATE FACT-DEATH OF DECEDENT IN CITY.-The averment of the complaint that the executors had the assessed property in their possession and control in said city at the time stated is of the ultimate fact, to prove which it may be necessary to show in evidence that the said decedent died in said city. ID.-AUTHORIZATION OF SUIT.-The suit by the city to recover the alleged amount of taxes is authorized, both by the ordinance of the city reg ulating the levy and collection of taxes, and by the charter of the city providing that the mode and manner of collecting municipal taxes shall substantially be the same as the mode and manner at the time prescribed by the law for collection of state and county taxes in said county. ID.-ASSESSMENT-ROLL AS PRIMA FACIE EVIDENCE.-The provision of the charter makes applicable to suits for the collection of city taxes the provision of statute as to the collection of general taxes, that "the assessment-roll shall be prima facie evidence of the plaintiff's right to recover. ID.-OVER-ASSESSMENT FAILURE TO APPLY TO BOARD OF EQUALIZATION— EXECUTORS CONCLUDED.-Where there was an over-assessment of solvent credits to the estate, the sole remedy of the executors was to appeal to the board of equalization, and upon failure to apply thereto they are concluded by the assessment, and cannot defend the action to recover the taxes assessed on that ground. APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge. The facts are stated in the opinion of the court. McNutt & Hannon, for Appellants. W. B. Mathews, and Hartley Shaw, for Respondent. WILBUR, J. (Pro tem.)-This is an action brought by the city of Los Angeles, a municipal corporation, for the recovery of $1335.18, taxes, with penalties, levied by said municipality upon the property of Andrew Glassell, deceased. The superior court gave judgment for the full amount claimed, and the defendants appeal from the judgment and from an order denying a motion for a new trial. The complaint is very brief; after alleging the death of Andrew Glassell on January 28, 1901, in the city of Los Angeles, the appointment, on February 19, 1901, of the defendants as executors of his last will, and their qualifications as such, it is further alleged: “That said Hugh Glassell, as executors of the last will and testament of said Andrew Glassell, deceased, are indebted to the plaintiff in the sum of thirteen hundred and thirty-five dollars, eighteen cents, with ten per cent penalty added thereto for nonpayment thereof, and interest thereon at the rate of two per cent per month, from December 1, 1901; which said taxes were duly assessed and levied by said city of Los Angeles for the fiscal year 1901-2, upon personal property which then and there belonged to and was part of the estate of said Andrew Glassell, deceased, and which said defendants, as such executors, had in their possession and control in said city of Los Angeles at 12 o'clock, noon, on the first Monday in March, 1901; that said personal property so assessed consisted of solvent credits in the amount of $101,605, bonds in the amount of $5000, and money in the amount of $210.” The defendants deny the allegations of the complaint, and allege that they were nonresidents of the city of Los Angeles on the first Monday in March, 1901; admit the ownership of the bonds and money described in the complaint, but deny the ownership of the solvent credits. The finding of the court in regard to solvent credits was that the defendants as executors had in their possession and control in the city of Los Angeles solvent credits amounting to the sum of $71,756, and no more, at 12 o'clock, M., on the first Monday in March, 1901. Three questions are raised upon the appeal: First, whether the complaint states a cause of action; second, whether the production of the assessment-book in evidence was sufficient prima facie proof of all facts essential to recovery, and third, whether or not a recovery should be had for the full amount of taxes when the solvent credits actually owned were of less value than the amount assessed. 1. It is contended by the appellants that the complaint fails to state a cause of action for the reason that all of the proceedings leading up to the levy of the tax are not alleged in detail; that it is not alleged in the complaint that the property taxed was within the city of Los Angeles, and that no authority is alleged on the part of the city council for the bringing of this action as is required by the provisions of section 64 of the ordinance of the city regulating the levy and collection of taxes. The respondent claims that the complaint is in the form prescribed by statute as the form of complaint in actions for the recovery of taxes (Stats. 1880, p. 136). The constitutionality of this statute, however, is attacked by appellants upon the authority of People v. Central Pacific R. R. Co., 83 Cal. 393, [23 Pac. 303], in which a similar statute was held unconstitutional. This case was overruled and discredited to such an extent by the supreme court in the later case of People v. Central Pacific R. R. Co., 105 Cal. 576, (38 Pac. 905), that it can hardly be considered as an authority upon the question involved in this case, particularly as the earlier decision was brought about in part by an effort to harmonize conflicting provisions in the Code of Civil Procedure and the Political Code, while the construction of statute in question, enacted subsequent to the codes and in form an independent statute, is not embarrassed by that consideration. The complaint at bar, however, in addition to the allegations required by the statutory form of complaint, contains a description of the property assessed and an allegation that said taxes were “duly assessed and levied ... upon personal property which then and there belonged to and was part of the estate of Andrew Glassell, . . . which said defendants, as such executors, had in their possession and control in said city of Los Angeles at 12 o'clock, noon, on the first Monday in March, 1901." In San Francisco v. Pennie, 93 Cal. 465, [29 Pac. 667), a similar complaint was held sufficient as against a general demurrer. On the authority of that case it must be held that the complaint at bar sufficiently states a cause of action. It is claimed that as the complaint fails to state that Andrew Glassell, deceased, died in the city of Los Angeles, it fails to show that the property was within the jurisdiction of the said city, as the personal property of a decedent is taxable at his place of death. But the complaint does show that the defendants had the property taxed in their possession and control in the city of Los Angeles at 12 o'clock, noon, on the first Monday in March. This is the ultimate fact to prove which it may have been necessary to show in evidence that the said decedent died in said city. |