Hatterman v. Pacific Gas & Electric Co.

PULLEN, P. J.

In .this case a complaint was filed by Carrie A. Gladding and J. W. Halterman against the Pacific Gas and Electric Company wherein plaintiffs alleged that Carrie A. Gladding was the owner of a ranch situated in Placer County, through which ran a watercourse known as Coon Creek, and that during a time specified, plaintiff Halter-man, acting under a contract with plaintiff Carrie A. Glad-ding, was erecting a dam across Coon Creek, and while so engaged defendant Pacific Gas and Electric Company diverted and released a large volume of water into Coon Creek, which waters interfered with the construction work of plaintiffs, to their damage.

By subsequent proceedings a third amended and supplemental complaint was filed by Halterman alone, in which he alleged ownership of the property in Carrie A. Gladding, his right thereon as invitee, and injury to him through discharge of waters into Coon Creek by defendant. Defendant answered this amended complaint and also filed a cross-complaint naming therein as cross-defendants Carrie A. Gladding and Halterman, and setting up the right of the defendant, a public utility, to discharge waters into Coon Creek over the lands of Mrs. Gladding, and a dedication of the right to public use, and prayed for a decree to quiet title of the cross-complainant to such right.

Although no order was made for the bringing in of Carrie A. Gladding as a new party in the cross-complaint, nor was any summons issued or served upon her, she nevertheless

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appeared and demurred upon the ground that the cross-complaint failed to state a cause of action and that the court had no jurisdiction of the person or subject-matter therein set forth, and also filed a motion to strike the cross-complaint. After a hearing the court sustained the demurrer and granted the motion to strike Carrie A. Gladding as a cross-defendant from the action. From the order granting the motion to strike, defendant and cross-complainant prosecutes this appeal.

The order striking Carrie A. Gladding as a cross-defendant, being a final-judgment and a termination of the action as to her, is therefore appealable.

(Howe

v.