Elberg v. County of San Luis Obispo

The Court. In the Department opinion rendered in this case it was decided that the judgment appealed from, entered after a general demurrer to the complaint had been sustained, should be affirmed. This was upon the ground that no cause of action was stated against the defendant county, which was not a proper party [317]defendant, and against which plaintiff had no claim or demand.

The point, however, had not been presented in the briefs of counsel, and it was urged that the decision worked a hardship upon appellant, who had thus been given no opportunity to argue the question. The rehearing was therefore ordered.

Upon a second examination we are satisfied with the Department opinion. Appellant is in the unfortunate position of claiming a cause of action against B which he seeks to prosecute against A. He has stated no cause of action against B, and could not amend to substitute A for B. His only course would be to institute a new suit against the true defendant.

The reasoning and authority in support of the conclusion that the county is not a proper defendant will be found set forth at length in Pacific Mut. Life Ins. Co. v. County of San Diego, ante, p. 314.

The judgment is affirmed.

Beatty, C. J., did not participate in the foregoing; decision.

The following is the opinion above referred to, rendered in Department Two, on the 3d of August, 1895:

Britt, C. Action to recover certain payments of taxes of the fiscal year 1893-94, made, under protest, in July, 1894, to the tax-collector of San Luis Obispo county for the support of a high school in the San Luis Obispo Union High School District—a district assuming to be organized under the act to provide for the establishment of high schools, approved March 20, 1891. (Stats. 1891, p. 182.) The levy of such taxes is claimed to have been illegal in several respects. It appears from the complaint that thirteen adjoining school districts in said county united for the formation of the high school district, and the taxes in question were levied by the board of supervisors in September, 1893, at the request and upon the certified estimate of the majority of the clerks, [318]