Section 3459 of the Political Code provides that if the original assessment is insufficient to provide for the complete reclamation of the lands of a district, the board of supervisors of the county by which the district was formed on the presentation to the board by the trustees of the district of a statement of the work done or to be done and its estimated cost, can make an order directing the commissioners who made the original assessment, or other commissioners named by the board to assess the amount of such estimated cost as a charge upon the lands within the district. An assessment for the reclamation of lands in a swamp land district is a liability created by statute, and an action to enforce it must be commenced within three years after the cause of action thereon accrued.37 In the absence of evidence to the contrary it will be presumed that the commissioners in viewing the land and making the assessment conformed to the requirements of section 3456 of the Political Code; and in an action to enforce the payment of a swamp land assessment, the record as entered in the minute book of the board of supervisors of the order of the board appointing commissioners to view the land and make the assessment is prima facie evidence of the facts stated therein, and a clerical error in this record may be altered so as to show the order actually passed by the board.38 The commissioners appointed to make the assessment should be disinterested persons.39 A swamp land assessment to a party named and to unknown owners is void.40 A swamp land assessment roll properly made out and certified to by the commissioners is probably prima facie evidence of the facts therein stated.41 An act which authorizes assessments on land without giving to the owner of the land an opportunity in an action or other 37. People v. Halbert, 71 Cal. 72. 38. Swamp Land District v. Wilcox, 75 Cal. 443. 39. Political Code, Sec. 3456. 40. Gwynn v. Dierssen, 101 Cal. 564. 41. Swamp Land District v. Gwynn, 70 Cal. 566. wise for a hearing in respect to such assessment, is unconstitutional.42 Whenever the jurisdiction of a tribunal, not a court of record, depends on facts which the tribunal is required to ascertain and settle by its decision, such decision, if the tribunal has jurisdiction of the parties, is conclusive against a collateral attack, but such decision is not conclusive against a direct attack, whether such attack be by writ of review or otherwise.44 42. Hutson v. Protection District, 79 Cal. 90. 43. People v. Hagar, 52 Cal. 171. 44. In re Madera Irrigation District 92 Cal. 331 et seq. CHAPTER XV. OF PREPARATIONS FOR THE TRIAL OF AN ACTION. When the issues of fact are joined in an action, the attorneys should make preparations for the trial of the action. They should carefully determine what issues of fact are raised by the pleadings, and what evidence is applicable to such issues. If there are documents which an attorney believes to be essential as evidence for his side of the case, and which are in the possession or under the control of the adverse party, he should demand an inspection of such documents and procure copies thereof. If he deem the testimony of the adverse party to be material for his side of the case, he should take steps to have taken before trial the deposition of such adverse party. If he knows of any witness who cannot be compelled by a subpoena to attend as a witness on the trial of the action, he should have taken the deposition of such witness to be used on such trial. He should ascertain before the trial of the action if it be possible so to do, what the testimony of each witness whom he proposes to introduce as a witness on the trial of the action will be. He should take prompt steps to have subpoenaed for the trial of the action all persons whose attendance as witnesses is material at such trial when such attendance can be enforced by subpoena. He should give reasonable notice to the adverse party to produce at the trial of the action, documents and papers which are in the possession or control of the adverse party, and which he deems essential as evidence on his side of the case. And he should acquaint himself with all the rules of evidence which are applicable to the introduction of evidence on the trial of the action. If an attorney for the defendant, and he is of the opinion that the plaintiff in the action will be entitled to judgment for some amount or for some property or otherwise in the action, he should at least ten days before the action serve upon the plaintiff an offer in writing signed by the defendant, to allow judgment to be taken against him for the sum or property, or to the effect in such offer specified. In such case if the plaintiff does not accept the offer and fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer.1 If an attorney for either party cannot obtain from the other party to the action an inspection and copy of entries of accounts in any book, or of any document or paper in the possession of such other party or under his control containing evidence relating to the merits of the action or the defense therein, such attorney should, on affidavit showing that such book of accounts, document, or paper contains evidence relating to the merits of the action, or the defense therein, and on a written notice to the opposite party of his intention so to do, apply to the court in which the action is pending, or a judge thereof, for an order that such other party within a time to be specified in such order give to him an inspection and copy, or permission to take a copy of such entries, document or paper; and if compliance with such order be refused, the court may exclude the entries of accounts, or the document or paper from being given in evidence, or if wanted as evidence by the party applying may direct them to be presumed to be such as the party applying for the order alleges them to be.2 1. Code of Civil Procedure, Sec. 997. CHAPTER XVI. OF EVIDENCE. Judicial evidence is the means sanctioned by law of ascertaining in a judicial proceeding the truth respecting a question of fact.1 Proof is the establishment of a fact by evidence." Courts take judicial notice of certain facts, and such facts need not be alleged in the pleadings; and evidence need not be introduced on the trial of the action to establish such facts.3 Such facts are: 1. The true significance of all English words and phrases, and of all legal expressions. 2. Whatever is established by law. 3. Public and private official acts of the legislative, executive and judicial departments of the state and of the United States. 4. The seals of all the courts of this state and of the United States. 5. The accession to office, and the official signatures and seals of office of the principal officers of government in the legislative, executive and judicial departments of this state and of the United States. 6. The existence, title, national flag and seal of every state or sovereign recognized by the executive power of the United States. 7. The seals of courts of admiralty and maritime jurisdiction, and of notaries public. The laws of nature, the measure of time, and the geographi 1. Code of Civil Procedure, Sec. 1823. 3. Stephens on Pleadings 346; 1 Greenleaf Ev., Chapter II. |