Reclamation District v. Hershey

[693]

HENSHAW, J.

This is an action brought by plaintiff to enforce the collection of an assessment upon the lands of the defendants and appellants. Judgment passed for plaintiff. Prom that judgment these defendants did not appeal, their sole appeal being from the order denying their motion for a new trial.

Upon this appeal, however, they urge certain propositions cognizable, if at all, only on appeal from the judgment, and others which in the condition of the record cannot here be considered. Thus appellants filed an amendment to their answer tendering certain new matters as a defense. This amendment was stricken out by the court. Its ruling in this regard can be reviewed only on appeal from the judgment.

(Bode

v.

Lee,

102 Cal. 583, [36 Pac.

936]; Holmes

v.

Warren,

145 Cal. 460, [78 Pac. 954];

Petaluma, etc., Co.

v.

Singley,

136 Cal. 618, [69 Pac. 426];

Swift

v.

Occidental Mining Co.,

141 Cal. 165, [74 Pac. 700].) Again, appellants undertake to attack the legality of the formation of the district. But if the organization of such a district be subject to collateral attack in an action to collect an assessment, no issue upon the matter is joined by the pleading. Amongst other propositions advanced are that the report of the board of trustees to the board of supervisors of the plans of reclamation do not conform to the requirements of section 3455 of the Political Code, that the lands of these appellants are not described as required by the provisions of section 3461 of the Political Code, and that the amount of the charge assessed against each tract as provided by subdivision 4 of section 3461 of the Political Code is not stated. The complete answer to these propositions is that the complaint charged the due performance of these matters and that the defendants did not join issue upon any of them. The effort of the defendants to raise any of these issues by the amendment to their answer was rendered futile by the court striking out those amendments, and their redress for any injury which they may deem they suffered by this ruling can only be given them upon an appeal from the judgment, an appeal, as has been said, which they have not taken.