[Civ. No. 719. Third Appellate District.-April 1, 1910.]

FRANK CHIAFULLO, by His Guardian ad Litem, ANΤΟΝΙΟ CHIAFULLO, Respondent, V. MOSES SCHWAB, Appellant.

APPEAL DISMISSAL-FAILURE TO FILE TRANSCRIPT-NONAPPEARANCE OF APPELLANT-PRESUMPTION-VEXATIOUS APPEAL FOR DELAY-DAMAGES.-Upon a motion to dismiss an appeal for failure to file the transcript within the time limited, and for damages for a vexatious appeal for delay, where, after the service of the appellant with notice of the motion, the appellant fails to respond, and no excuse appears for the delay, it must be assumed that the purpose of the appeal was as stated in the motion of respondent, and the appeal will be dismissed, with damages assessed against the appellant.

MOTION to dismiss an appeal from a judgment of the Superior Court of Yuba County. Eugene P. McDaniel, Judge.

The facts are stated in the opinion of the court.

Brittan & Raish, for Appellant.

W. H. Carlin, for Respondent.

BURNETT, J.-This is a motion to dismiss the appeal on the ground "that more than forty days have elapsed since the taking of said appeal and no transcript on appeal has been prepared, served or filed," and respondent also asks the court to assess damages for the "taking of a vexatious appeal for delay." The notice of appeal was given and filed on January 13, 1910, and an undertaking was filed on the same day. Nothing further seems to have been done in the prosecution of the appeal and no excuse is offered for the delay. The notice of the motion to dismiss was given on March 6th and appellant did not appear at the hearing. Under the circumstances we must assume that the purpose of appellant in taking the appeal was as stated by respondent.

The appeal is therefore dismissed, with damages against appellant assessed at $30.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 843. Second Appellate District.-April 2, 1910.] JOHN H. MCGOWAN, Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, County of Los Angeles, W. P. JAMES, Judge of said Superior Court, and H. A. PIERCE, Justice of the Peace, in and for Los Angeles Township, etc., Respondents.

WRIT OF REVIEW-JURISDICTION OF SUPERIOR COURT TO DISMISS APPEAL FROM JUSTICE'S COURT-ERRONEOUS ACTION.-A writ of review will not lie to annul the action of the superior court in dismissing an appeal from the justice's court taken thereto on questions of law and fact, however erroneous and arbitrary the action may be, since the superior court has jurisdiction as fully to hear and determine a motion to dismiss the appeal as it has to determine the cause upon its merits.

APPLICATION for writ of review to annul an order of the Superior Court of Los Angeles County, dismissing an appeal taken from the justice's court thereto on questions of law and facts. W. P. James, Judge.

The facts are stated in the opinion of the court.

Hanson, Hackler & Heath, for Petitioner.

THE COURT.-Assuming that the matters and facts set forth in the petition disclose arbitrary action on the part of the superior court in dismissing an appeal regularly taken from a justice's court upon questions of both law and fact, and which appeal was then pending in said superior court, by which order it divested itself of jurisdiction and prevented appellant from having a hearing of such cause upon its merits, we are then confronted with the precise question involved in Buckley v. Superior Court, 96 Cal. 119, [31 Pac. 8], wherein our supreme court has said, referring to the superior court, "it has jurisdiction to hear a motion to dismiss the appeal as fully as it has jurisdiction to hear and determine the cause upon its merits; and to erroneously dismiss the appeal is no more jurisdictional than to erroneously decide the merits of the cause. While we are much impressed with the reasoning employed in the former case of

Hall v. Superior Court, 68 Cal. 25, [8 Pac. 509], wherein it is said, "that court [the superior court] can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient," nevertheless, we feel ourselves bound by the subsequent ruling in Buckley v. Superior Court, supra, which, while the opinion of a divided court, has never as yet been directly overruled or modified.

Adopting, then, as we feel ourselves bound to do under the circumstances, the rule laid down in the later case, this application must be denied.

Application for writ denied.

[Civ. No. 634. Third Appellate District.-April 6, 1910.] T. M. BURNS, Respondent, v. FRANK J. CASEY, Appellant.

STREET IMPROVEMENT-DECREE FORECLOSING LIEN-APPEAL-ABSENCE OF EVIDENCE-UNTENABLE OBJECTIONS TO DESCRIPTION IN RESOLUTION-AFFIRMANCE.-Upon appeal from a decree foreclosing the lien of a street assessment upon plaintiff's property for a street improvement under the Vrooman act, taken without a bill of exceptions or the evidence in any form, it is held that the objections of appellant to the insufficiency of the description of the work in the resolution of intention are without substantial merit, and that the judgment must be affirmed.

ID. GENERAL RULE AS TO SPECIAL PROCEEDINGS IN INVITUM-STRICT CONSTRUCTION-STREET PROCEEDINGS-PRACTICAL ABSURDITY NOT REQUIRED. Although, as a general rule, special proceedings for the assessment and taxation of property for special purposes are in invitum, and must be strictly followed, yet the laws authorizing assessments for street improvements and other improvements necessary to the welfare of the community are not supposed to be so strictly construed as to render them practically nonsensical and nugatory.

ID. SUBSTANTIAL COMPLIANCE WITH STREET LAW-PROPER NOTICE.-A substantial compliance with the provisions of the street law ought to be all that should be required, where property owners have been given such notice, in form required by law, of the proposed im

provement as will put them in possession of fairly accurate knowledge of the character and extent of the work to be done, and of a reasonable approximation of the detailed and total cost of the improvement.

ID.-FAILURE TO OBSERVE IMMATERIAL TECHNICAL REQUIREMENTS-ASSESSMENT NOT INVALIDATED.-In such case, no assessment ought to be nullified, and the contractor forced to suffer a heavy loss, or perhaps made a bankrupt, merely because of the omission of the authorities to observe some immaterial technical requirements of the law authorizing the work.

ID. FOUNDATION FOR CURBS, GUTTERS, ETC.-SPECIFICATIONS "TAMPING EARTH"-DISCRETION OF SUPERINTENDENT "SELECTED EARTH""CRUSHED ROCK.”—A specification that the foundation for the curbs, gutters and round corners shall be laid by "tamping the earth" upon which they are to rest is clear and definite; but a discretion in the superintendent of streets to determine, as the result of digging, whether "selected earth material" or "crushed rock" shall be necessary is reasonable, and cannot invalidate the assessment. ID.-ABSENCE OF EVIDENCE UPON APPEAL DIFFERENCE IN COST NOT SHOWN.-There being no evidence upon appeal as to the difference in the cost of obtaining "selected earth material" and "crushed rock," and such difference being a question of fact according to the circumstances under which either is obtainable, there is no basis upon which the judgment can be reversed on account of the discretion vested in the street superintendent.

ID. QUESTION NOT PREDETERMINABLE BY CITY COUNCIL.-The question whether the earth in which the foundations of the gutters, curbs and round corners are to be laid was naturally of sufficient compactness and strength to be suitable for that purpose, or whether "selected earth material" or "crushed rock" would be required, could not be determined by an inspection of the surface, and was not therefore subject to predetermination by the city council.

ID. EVEN SURFACE OF STREET-USE OF "SUITABLE" EARTH MATERIAL.— A specification requiring the contractor to bring the surface of the street to a smooth and even grade by the use of "suitable" earth material is not subject to just criticism by the use of the word "suitable." If that word were omitted, it would be implied in the obligation imposed upon the contractor, and it is not made less certain by inserting that word.

ID.-ALTERNATIVES IN MACADAM AND

CONCRETE-MATERIALS FOR CRUSHED ROCK-QUESTION OF FACT-DIFFERENCE IN COST.-There being nothing in the record to show any difference in the cost between the materials of cobbles, trap and basalt, out of which the macadam and concrete may be constructed, this court cannot take judicial notice of any difference in the cost of such materials, the only difference being a question of fact as to which might be more

readily accessible or procurable than the others in sufficient quantity to do the work.

ID.-LOCATION OF CONCRETE CATCH-BASIN-DETERMINATION BY CITY SURVEYOR-COST NOT AFFECTED.-The fact that the location of a concrete catch-basin to be constructed by the contractor was to be determined by the city surveyor is not material, where the construction of the catch-basin is minutely described, and it does not appear that its location at any particular point would increase or diminish the cost of its construction.

ID.-LINES AND LOCATION OF CURBS AND GUTTERS NOT SPECIFIED-MATTER OF COMMON KNOWLEDGE.-The fact that the lines and locations of the curbs and gutters are not specified does not render them uncertain. It is matter of common knowledge that curbs must be placed at one of the edges of a street, and that they form the inner side of a gutter.

ID.-DISCRETION OF CONTRACTOR AS TO METHOD OF MIXING CEMENT

USE OF HAND OR MACHINE.-Where the standard of concrete is the same, the discretion given to the contractor to construct it by hand or by machine simply gives him discretion as to the method of laying the concrete of that standard.

ID.-INVALID POWER CONFERRED UPON CITY SURVEYOR POWER OF ADJUDICATION UNEXERCISED OR ATTEMPTED.-The judicial power conferred upon the city surveyor to make a final adjudication of any misunderstanding or dispute as to the interpretation of the contract is invalid and void; but it is harmless where there was no attempt at the exercise of such power and no occasion arose calling for its exercise.

ID.-VALIDITY OF DISCRETION CONFERRED.-The validity or invalidity of power or discretion conferred upon the county surveyor or the superintendent of public streets depends upon its nature. The giving of discretion to some person as to matters of detail in construction is inevitable in every street improvement, if no power is improperly delegated.

APPEAL from a judgment of the Superior Court of Sacramento County. C. N. Post, Judge.

The facts are stated in the opinion of the court.

A. L. Shinn, C. G. Shinn, and Carl L. Shinn, for Appellant.

White, Miller & McLaughlin, for Respondent.

HART, J.-This is a suit for the foreclosure of a lien arising upon an assessment of the property of the appellant,