Henry v. Vineland Irrigation District

COOPER, C.

This appeal is by the intervener from a; judgment dismissing the action. The complaint alleges that plaintiffs are severally the owners of different tracts of land in Vineland Irrigation District, in the county of Los Angeles; that assessments for taxes were levied on the said lands in the years 1893 and for each succeeding year to and including 1898, the lands sold for faxes and bought in by-said district at tax-sales; that the assessments were made for-the purpose of raising money for the payment of interest on-certain bonds issued by the district, and that the bonds are-void for certain reasons therein stated; that the assessments, upon, and sales of, the lands described in the complaint were-irregular and void. Judgment was accordingly prayed that the assessments and sales of the said lands be declared void, and that defendant be enjoined from issuing certificates off

[377]

sale or other evidences of title to said lands, and that the said bonds of said district be declared void. The defendant by its answer denied the principal allegation of the complaint. The intervener filed his complaint in intervention, alleging that his intestate was at the time of his death the owner of certain bonds of said district upon which the interest was delinquent; that certain proceedings were had .in regard to levying the assessments upon the lands described in the complaint and the sales thereunder, which, it is claimed, showed the assessments and sales to be valid. The intervener also alleged that the bonds of the district were valid, and set forth certain judgments by which it was claimed that their validity was duly adjudicated. When the case was called for trial, the court, upon plaintiffs’ motion, dismissed it, and judgment of dismissal was accordingly entered. It is provided in section 581 of the Code of Civil Procedure that an action may be dismissed “by the plaintiff himself, by written request to the clerk, filed among the papers in the case, at any time before trial, upon payment of costs; provided, a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of the defendant.” In this case no affirmative relief was sought by the answer, nor by any cross-complaint by defendant. Nor was any question raised as to the payment of costs. Therefore, that the action was correctly dismissed as between plaintiffs and defendant there can be no question. But the appellant had filed his complaint in intervention, and claims that he had the right to have the case proceed for the purpose of having the issues made by the complaint in intervention determined. Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. The intervener may join the plaintiff in claiming what is sought" by the complaint, or unite with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both plaintiff and defendant. (Code Civ. Proc., see. 387.) In this case the complaint in intervention was for the purpose of resisting the claims of the plaintiffs. If the claims made by the plaintiffs were defeated, the ends and purposes of the intervention were accomplished. It is contended by appellant that he