Harney v. Appelgate

California Supreme Court Jul 1, 1881 No. No. 6,580Published

Before: Morrison

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Holding. The court held that in an action to enforce a street assessment lien, all joint owners of the property are necessary parties, and a plaintiff cannot proceed to judgment after dismissing the action against some of those owners.

Issues

Whether a plaintiff may dismiss an action to enforce a street assessment lien against some joint owners while proceeding against others.
Whether the trial court erred in refusing to allow defendants to amend their answer to assert that dismissed parties were necessary owners of the property.

Disposition. reversed

Quotations verified verbatim against the opinion

“By the complaint, it appears that Lawrence, Appelgate, and others were joint owners of the lot, and, as such, they were necessary parties to the suit.”

“It was not contemplated by the statute .that the interest of only one, or of any number less than all, of the joint owners of the property should be subjected to sale for the satisfaction of the lien of the assessment.”

Synopsis

Stbeet Assessjuent—Pabttes — Amendment—Pbaotioe.—In an action to enforce a street assessment against a lot in San Francisco, it appeared from the original complaint that all the defendants were joint owners of the lot, and, as such, necessary parties to the suit; but when the case was called for trial, the action was dismissed, on motion of the plaintiff, as to some of the defendants, and the complaint amended by striking their names from its caption. Hold, that if the effect of the amendment was to show that the dismissed defendants had no interest in the lot, then it was the right of the remaining defendants to amend their answer, and aver that the dismissed defendants did have an interest in the lot.

Morrison, C. J.: Plaintiff brought suit against a large number of defendants, to enforce a lien for work done by him upon a certain street in the city and county of San Francisco.

The averment in the complaint, respecting the ownership of the property sought to be charged with the lien, is as follows : “ That the said defendants, at and during all the time of taking the aforementioned proceedings, and particularly on the 29th day of October, 1875, were, and still continue to be, the owners [206]of certain portions of the lots and lands aforesaid assessed, and liable to assessment as aforesaid, for the work so done as aforesaid; that is to say, all the defendants now are, and on the day last aforestated were, and ever since then have been, the owners in fee of the following-described lot of land situate in the said city and county, adjacent to said work, and liable to assessment for its proportion of the cost of the same, to wit: ” (Here follows a description of the property upon which the lien is claimed.)

When the- case was called for trial in the District Court, counsel who represented some of the defendants suggested that the Court had not obtained jurisdiction over the defendants Lawrence, Appelgate, and others, and moved the Court to continue the case until they were brought in. Counsel for the plaintiff thereupon moved for leave to dismiss as to said defendants Lawrence, Appelgate, and others, and that the complaint be amended by striking out in the caption thereof the names of said defendants. Counsel for some of the defendants then before the Court thereupon objected, on the ground that the defendants Lawrence, Appelgate, and others were alleged in the complaint to be owners of the property on which the lien was sought to be foreclosed, and were necessary parties to the suit. The Court granted the motion to dismiss the suit as to said parties, and allowed the amendment. The complaint was thereupon amended, and exception duly taken.

Counsel for said defendants then asked leave to answer the complaint as amended, and to amend their answer by setting up that said parties, as to whom said suit had been so dismissed, were owners of the premises on which the lien was sought to be foreclosed, and therefore necessary and material parties.

The Court—“I will require a showing.”

Counsel—“ I ask time to make a showing.”

The Court refused to give time, and refused to grant time to amend their answer, to which defendants duly excepted.

Harney v. Appelgate

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