East Riverside Irrigaton v. Holcomb

—This is an appeal by plaintiff from a judgment in favor of defendants, and from an order denying his motion for a new trial. The cross-complaint of certain persons who may he designated as Fox and others, and who were brought in as defendants against the objection of plaintiff by order of court, and the findings of the court, are very voluminous and deal with a great many matters which would he difficult to briefly state; hut these matters need not he noticed with any great detail, because, in our opinion, the court erred in allowing the cross-complaint to be filed and in dealing with the issues which it sought to raise.

The purpose of the action, as stated in plaintiff’s complaint, is merely to enjoin the defendant Holcomb, as sheriff, from forcibly cutting a hole in a large water pipe of plaintiff, and placing or causing to fl.ow in said pipe certain water. The complaint merely states facts sufficient to entitle the plaintiff to the relief sought. It is averred that the sheriff was about to cut the pipe as aforesaid at a point considerably below its head and

The defendant Holcomb asked to have Fox and others brought in and made defendants; to this the plaintiff objected, but the court ordered them to be brought in, and plaintiff excepted to the order. Fox and others filed an answer in which some of the averments of the complaint were denied, and which may be construed, perhaps, as asserting the right of the sheriff to pro-1 ceed under the execution. But, in addition, they filed a cross-complaint in which, leaving out of view the right of the sheriff to proceed under the execution, they set out an entirely new cause of action against the plaintiff, averring that by a certain written contract with another party called the Vivienda Water Company, and by various other facts set up, they had acquired a right to run thirty inches of water though the plaintiff’s pipe, and also an additional ten inches of water, and prayed for a decree declaring their right as against the plaintiff to run forty inches of water through said pipe. This cause of action is entirely separate from and independent of the judgment in the said case of Lewis v. Fox and others; it constitutes, indeed, a

The questions here presented involve not only section 442 of the Code of Civil Procedure, which refers to cross-complaints, but also section 389, which deals with the matter of bringing in new parties, and section 387, which deals with the matter of intervention. Section 442 provides that when “the defendant” seeks affirmative relief “relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates,” he may file a cross-complaint. In the case at bar, the cross-complaint certainly did not relate to or depend upon the transaction upon which the action was brought, namely, the execution under said judgment; and it is doubtful whether it could be considered as “affecting the property to which the action relates.” But it is primarily applicable onty to the defendant—that is, the person whom the plaintiff had originally made defendant. Before any other person could take advantage of the section, he must have been made a defendant for the purpose of filing a cross-complaint, and his cross-complaint must have been of such a character as would warrant the court to order him brought in for the purpose of filing it.

The first questions presented, therefore, are: 1. Could Fox and others, against plaintiff’s will, he brought in as defendants at all—for any purpose? and 2. Could they be brought in for the purpose of allowing them to file their cross-complaint, and thus inaugurate practically a new action?

1. While it can hardly be said that, for any purpose, they, were necessary parties, under section 389, still, as the writ which the sheriff was about to execute was in their favor, and they

2. But allowing Fox and others, by a cross-complaint, to set up new matters and causes of action not involved in the original suit—not defenses to the action, and not available at all to the original defendant—raises entirely different questions from the one first noticed. Decisions dealing directly with modern statutory cross-complaints, and declaring what parties may use them and for what purpose they may be used, are quite meager, and we have been referred to none which bear directly upon the question arising in the case at bar. The principles which govern are, however, to a great extent those which apply to interventions and counterclaims and the bringing in of new parties and those which would apply to cross-bills under the old equity practice. The general rule is, that a plaintiff may select those whom he desires to make defendants, and that new parties brought in against his will cannot be allowed to set up against him defenses and affirmative causes of action which the original defendant could not have set up; and this is especially so where the granting of the relief sought by the original complaint would not have prejudiced the other causes of action which the new parties seek to have adjudicated. Peculiar circumstances may make exceptions to the rule, but the general principle is as above stated. (Fagan v. Barnes, 14 Fla. 56 ; Andrews v. Hobson, 23 Ala. 239 ; Daniel v. Morrison, 6 Dana, 186 ; National Fire Ins. Co. v. McKay, 21 N. Y. 191 ; Chapman v. Forbes, 123 N. Y. 532 .)

In Daniel v. Morrison, supra, it is said: “A cross-bill can be sustained only upon matters growing out of the original bill”;

In view of the foregoing principles and authorities the court erred in the case at har in refusing to strike out the cross-complaint. For the purposes of the cross-complaint, Fox and others were neither necessary nor proper parties to the action; the original defendant had no interest in any of the matters which they sought to set up, and could not have availed himself of them as a defense, or for any purpose; the judgment against him restraining him as sheriff from executing the writ would not have prejudiced any right or title of the cross-complainants which was independent of the judgment in Lewis v. Fox and others; and to allow them, against the plaintiff’s desire, to be brought in as new parties for the purpose of interjecting their new causes of action with all the questions which they involved into a simple suit to restrain the sheriff from executing a writ on one certain judgment, would he not only to violate plaintiff’s rights, but to tolerate a confusion of pleading and practice not sanctioned by any authority to which our attention has been called. If the cross-complainants have any cause of action against the plaintiff not based on the Lewis judgment and execution, they can properly assert it in an independent action. For these reasons the judgment and order denying a new trial must be reversed; and when the case goes down the court should strike out the cross-complaint; and if the judgment in Lewis v. Fox and others be still in existence^ the court should try and determine the single question whether the writ' of execution issued on that judgment is enforceable against plaintiff; and, in determining that question, the rights of the parties which grow out of and are based on that judgment and execution should alone be considered.

The judgment and order appealed from are reversed, with directions to the court below to take further proceedings as indicated in this opinion.

Temple, J., and Henshaw, J., concurred. ,