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Driscoll v. Howard

63 Cal. 438 Court Cal. Decision date 1883-05-30 English

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p. 438
[Department One.
May 30, 1883.]
S. DRISCOLL, Respondent, v. THOMAS B. HOWARD, Appellant.

Headnote

Strekt Assessment—Foreclosure of Lien. —Where an action to enforce the lien of a street assessment is against two or more owners, no decree can be entered after a dismissal as to one of the defendants. All the owners must be before the court.
p. 439
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
The facts are sufficiently stated in the opinion of the court.
Jarboe & Harrison, for Appellants.
A decree cannot be rendered in an action to foreclose the lien of a street assessment, unless all of the parties interested in the lot are before the court. (People v. Doe, 48 Cal. 560 ; Hancock v. Bowman, 49 Cal. 413 ; Clark v. Porter, 53 Cal. 409 ; Diggins v. Reay, 54 Cal. 525 ; Harney v. Appelgate, 57 Cal. 205 .)
C H. Parker, for Eespondents.
The plaintiff complied with the doctrine laid down in People v. Doe. There is no question of pleading in this case.
In Hancock v. Bowman, the plaintiff took judgment against a defendant not served or dismissed. This is not that case.
In Clark v. Porter, a defendant was dismissed against the objection of a co-defendant, and the latter ivas not allowed to plead the necessity of a joinder of said defendant as one of the owners. This is not that case.
Here the appellant, for aught that appears of record, had the opportunity to set up the non-joinder of the wife.
Harney v. Appelgate has no application to this case. Ho similar question arises here.
In Diggins v. Reay the case shows that no disposition was made as to one defendant.
That is not this case; as here, the wife of appellant was dismissed, which fact is shoivn in the judgment, p. 7 of the transcript.
Hothing in the record appearing to the contrary, the presumption is, that the dismissal ivas proper.

The action ivas brought to enforce the alleged lien of a street assessment. The action was brought against Thomas B. Howard and Mary T.

p. 440
the same. That the legal title of said land appears by deeds recorded in the recorder's office of said city and county to be in defendants.” The action was dismissed by plaintiff as to defendant Mary T. B. Howard. Upon the default of the defendant Thomas B. Howard, judgment wTas rendered against him and for a sale of the premises. From such judgment the defendant, Thomas B., appeals.

The original complaint was not amended. From the judgment roll it appears that the land being owned in fee by Thomas B. and Mary T. B. Howard, a decree for the sale of the premises was entered against the sole defendant Thomas B. Howard. But a decree cannot be entered in an action to foreclose the lien of a street assessment, unless all the owners of the lot are before the court. (People v. Doe, 48 Cal. 560 ; Hancock v. Bowman, 49 Cal. 413 ; Clark v. Porter, 53 Cal. 409 ; Diggins v. Reay, 54 Cal. 525 ; Harney v. Appelgate, 57 Cal. 205 .)

Judgment reversed and cause remanded for further proceedings.

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