Toomey v. Knobloch

By the judgment it was determined that certain assessments for street work are void, and the cancellation of the entire record of the warrant, assessment and diagram in the office of the superintendent of streets was adjudged because unauthorized by law.

There are only two reasons urged by appellants for a reversal of the judgment and the order denying the motion for a new trial, neither of which possesses any substantial merit.

The plaintiffs are the owners in severalty of different lots, and the contention is made that they are improperly joined as plaintiffs, and that, therefore, the demurrer to that effect should have been sustained. But the trial court was right in its ruling because the statute expressly authorizes the joinder of plaintiffs in one action to accomplish a common purpose. Section 378 of the Code of Civil Procedure provides that “All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs. ’ ’

It is true that it is not always easy to determine “the subject of the action.” Mr. Pomeroy says: “The term does not seem capable of any clear and complete analysis, and the result is that it may denote the thing if any—land, chattel, person, fund, estate and the like—in respect of which rights are sought to be maintained and duties enforced, or it may de

In the case at bar, though, the only thing in controversy affecting the rights of the parties is the validity of the assessment, and there is no good reason why that should not be considered the subject of the action.

It is true that the lien as to each lot is separate and distinct, and the relief sought is the cancellation of as many distinct liens as there are lots affected by the alleged invalid assessment, but the common ground of complaint in which all the plaintiffs are interested is that the warrant of assessment, the source and basis of all the alleged liens is invalid, and hence there is no support for the claim against any of the property, and the relief demanded which affects all who are joined in the action is the cancellation of said warrant.

The adjudication of this common interest and the determination and application of this common relief in favor of plaintiffs necessarily lead to the removal of the cloud upon the title to all the property.

It must be clear, therefore, that all the plaintiffs are interested in the subject of the action and in obtaining the relief demanded, «and even if not all necessary, they were at least proper parties to the proceeding. (Owen v. Frink, 24 Cal. 177 ; People v. Morrell, 26 Cal. 361 ; Churchill v. Lauer, 84 Cal. 236 , [ 24 Pac. 107 ]; Pomeroy’s Remedies, 3d ed., sec. 183; 21 Ency. of Pl. & Pr., pp. 463-466.)

But again, if the ruling of the court was technically erroneous, it is perfectly clear that defendants were not prejudiced thereby. (Daly v. Ruddell, 137 Cal. 674 , [ 70 Pac. 784 ]; Woollacott et al. v. Meekin, 151 Cal. 701 , [ 91 Pac. 912 ].)

In the latter case it is said: “Assuming that there was a misjoinder of parties plaintiff in an action by twelve persons owning separate lots of land to obtain a decree declaring void such assessment and the bonds issued thereon constituting a lien on their land, still such misjoinder was without prejudice to the defendant and the overruling of a demurrer to the complaint on that ground will not warrant the reversal of a judgment against the defendant.”

It is too well settled for further controversy that such a denial in the conjunctive raises no issue as to the ownership of either of the lots, and hence relieves the plaintiff from any legal duty to prove the allegation. (Leroux v. Murdock, 51 Cal. 541 ; Young v. Miller, 63 Cal. 302 ; Wise v. Rose, 110 Cal. 163 , [ 42 Pac. 569 ] ; Nolan v. Hentig, 138 Cal. 283 , [ 71 Pac. 440 ].)

The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.