Melvin v. E. B. A. L. Stone Co.

HALL, J.

This is an appeal from an order denying defendants’ motion for a new trial.

The first and probably most important point urged for a reversal of the order grows out of the action of the court in allowing plaintiff, over the objection of defendants, to file a supplemental complaint.

The action was brought to obtain an injunction preventing defendants, among other things, from blasting, excavating or removing earth or rock on and from a certain block in the city of Oakland, designated as block 70, in which is situate the lot and dwelling-house of plaintiff, so as to deprive the lot of plaintiff of the lateral and adjacent support of the adjoining land, and from operating engines at or near said block 70, with oil or other fuel, emitting offensive odors and injurious substances, and for damages alleged to have been causea to plaintiff’s dwelling-house and the furnishings thereof by the smoke, soot and dirt emitted from said engines.

The original complaint does not allege that any damage had been caused to plaintiff’s property by the blasting, excavating or removal of earth, but did allege, in substance, that defendants threaten and intend to continue blasting, excavating and removing earth from the described land, and if permitted so

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to do will impair and entirely destroy the lateral and subjacent support of the land of plaintiff. The supplemental complaint alleges that by certain blasting done by defendants subsequent to the filing of the complaint the dwelling-house of plaintiff was injured and damaged, and the walls and ceilings of the rooms thereof broken and cracked, and the furniture and ornaments of said house broken and destroyed, to plaintiff’s damage in the sum of $1000, for which she asked judgment.

The office of a supplemental .complaint is to plead facts material to plaintiff’s cause of action accruing after the filing of the complaint. (Code Civ. Proc., sec. 464.)

It is not proper to set forth a new and independent cause of action, but only such matters as may he consistent with and in aid of the case made by the original complaint. “It is no objection to a supplemental complaint that different or additional relief is asked for. Indeed, the object of the supplemental complaint is to obtain additional or different relief without resort to a new trial.”