Cohn v. Parcels

Belcher, C. C. — It is provided by the charter of the city of Los Angeles that when land has been condemned for the widening or extension of a street, the damages shall be paid by the holders of the property fronting on and adjacent to the street to be extended or widened, and that assessments shall be levied on the property in a certain manner to raise the amount needed, and “in case any street crosses the line of or forms a junction with any street so laid out, extended,, or improved, .... the land on the corners formed by said intersection or junction shall be assessed ” for an additional sum.

Under the provisions of the charter, proceedings were regularly taken by the city authorities to widen and extend Main Street. The plaintiff owned a lot fronting on that street, which was assessed for an additional sum of $213.78, on account of a supposed frontage on another street, “ forming a junction with ” Main Street.

The defendant was about to sell the plaintiff’s lot to pay this additional assessment, when this action was commenced to restrain the sale, upon the ground that [369]the assessment was improperly made, and the sale would cast a cloud upon the plaintiff’s title.

The defendant demurred to the complaint upon the ground that, in collecting the assessment, he was acting in his official capacity as the agent and servant of the city of Los Angeles, and the city should have been joined as a party defendant.

The court overruled the demurrer, and this ruling is assigned as error.

We think the demurrer was properly overruled.

There have been many similar cases in this state brought against collectors of taxes and assessments, but the point here presented does not appear to have been made in any of them.

In support of their contention, counsel for appellant cite Gilmore v. Fox, 10 Kan. 509. That was an action to restrain the sale of real property for an assessment, and it was held that the city was a necessary party defendant. The decision was, however, based upon the ground that the money, when collected, would belong to the city, which was liable for the payment of the damages in case the assessments were not collected.

That case is not in point here, for the reason that under its charter the city of Los Angeles was not made liable for the payment of the damages in any event, and the money, if collected, would have gone into a special fund, to be paid out to the parties entitled to it. The city had, therefore, no such interest in the case as to make it a necessary party.