
    [No. 3,710.]
    THE PEOPLE OF THE CITY AND COUNTY OF SAN FRANCISCO v. C. J. EATON.
    Finding of Facts.—When, material facts within the issues are not expressly found, the presumption, is that they were found in accordance with the judgment, unless it affirmatively appears that no other facts were proved than those included in the findings.
    Complaint in Street Assessment Case.—The fact that an assessment was made and issued is a material averment in a complaint to enforce the collection of a street assessment in San Francisco.
    Construction oe Statute Concerning Pleadings.—The law of 1869-70, concerning street assessments in San Francisco, which prohibits any defense, except that the Board did not acquire jurisdiction to order the work, or payment, or fraud in the assessment, was not intended to prevent the defendant from denying material averments in a complaint, but was merely intended to restrict affirmative defenses to those mentioned.
    Appear from the District Court of the Twelfth Judicial District, City and County of San Francisco.
    The facts are stated in the opinion.
    
      W. C. Burnett and E. F. Preston, for Appellant.
    Under the statute in force at the time this action was brought (Stats. 1869-70, p. 890), only three issues could be pleaded by the defendant.
    First—Want of jurisdiction to order the work.
    Second—That the assessment has been paid.
    Third—Fraud in the assessment, etc.
    The answer, therefore, tenders a number of immaterial issues, and no notice can be taken, nor finding implied, from any other than the jurisdictional one.
    
      The Board of Supervisors acquired jurisdiction at the expiration of the publication of the resolution of intention, and that is the only fact necessary on the question of jurisdiction.
    
      M. A. Edmonds, for Respondent.
    The implied findings sustain the judgment. The written findings do not cover all the issues. So exceptions were taken to the findings as defective. "In such cases the Court will presume all the facts have been found which are necessary to support the judgment.” (Hall v. Polack, 42 Cal. 219.)
   By the Court:

The action is to enforce the collection of a street assessment, and the complaint sets out the assessment and avers that it became delinquent and remains unpaid. Amongst other defenses, the answer denies that the Superintendent of Streets ever made or issued any assessment for the work mentioned in said amended complaint, or any part thereof.” The only finding of facts appearing in the record, relates to the publication of the resolution of intention, and on this finding a judgment was entered for the defendant, from which the plaintiff appeals. "We have repeatedly held that when material facts within the issues are not expressly found, we will presume them to have been found in accordance with the judgment, unless it affirmatively appears that no other facts were proved than those included in the findings. Applying this rule to the present case, it will be presumed that the Court found that no assessment was in fact made by the Superintendent of Streets. But the plaintiff claims that, under the statute, only three defenses are permitted, viz : first, that the Board never acquired jurisdiction to order the work; second, payment of the assessment; third, fraud in the assessment, etc. (Stats. 1869-70 p. 891); and it is therefore insisted that defendant is precluded from denying that the assessment was made and issued as averred in the complaint. Hence it is said that the issue tendered by the answer on this point was immaterial. But we do not think so. The fact that an assessment was made and issued was a material and necessary averment, without which the complaint would have stated no cause of action; and it was not intended to prohibit the defendant from denying material and necessary allegations of the complaint. The statute intended to restrict the affirmative defenses to those enumerated, but on no reasonable construction can be held to deny to a defendant the right to contravert the material averments of the complaint. (People v. Waterman, 31 Cal. 412.)

Judgment and order affirmed.  