MERIWETHER INV CO LIMITED v. LAMPTON CITY OF LOS ANGELES (1935)

The validity of section 76b of the Improvement Act of 1911, as added by St. 1933, p. 2392, is attacked on this appeal. Said section became effective in August, 1933, as an amendment to said act. After it became effective, appellant brought an action to enforce the lien of a street improvement bond, issued in 1931, and obtained judgment in November, 1933. The county clerk refused to enter the decree of foreclosure until certain provisions of said section 76b had been complied with. These provisions were that the city's share of the penalties upon the bond be paid to it, that the bond be delivered to the city treasurer for cancellation, and that a certificate of cancellation from the city treasurer be delivered to the county clerk. Thereupon the applicant sought a writ of mandate requiring the county clerk to enter the decree without regard to the requirements of section 76b. The city of Los Angeles intervened and obtained judgment denying the writ of mandate. From this judgment, the appeal is taken.

Appellant contends that section 76b is invalid because it impairs the obligation of the contract of the bondholder. In our opinion, section 76b affects the remedy only. A change of remedy does not impair the obligation of a contract, provided there still is an adequate and available remedy. Under section 76b the effectiveness of the remedy remains unimpaired, and the obligation of the bond is not affected.

Appellant's next contention is that section 76b is invalid because it requires the cancellation of the bond prior to the entry of judgment of foreclosure. Appellant argues that this cancellation destroys the obligation of the bond. In support of this contention, appellant relies upon section 1699 of the Civil Code. But section 1699 is not applicable here unless the bond were canceled “with intent to extinguish the obligation thereof,” which is not true. The clear intent of section 76b is that the obligation of the bond shall not be extinguished, but shall be kept alive in the form of a judgment which is to be entered upon the cancellation of the bond.

Appellant's third and last contention is that section 76b is special legislation in that it does not require the entry of the decree immediately upon the filing of the decision, as is the general rule under section 664 of the Code of Civil Procedure. An act is not special or invalid merely because it is peculiar to the character of the action with reference to which it is prescribed. Section 76b applies to all actions of a class alike, and is valid.

The judgment is affirmed.

CRAIL, Justice.

We concur: STEPHENS, P. J.; FRICKE, Justice pro tem.