Clark v. Porter , 53 Cal. 409 ( 1879 )

By the Court, Rhodes J.:

Action to recover a street assessment. It is alleged in the complaint that defendant Porter and several other persons, who are made defendants, are the owners of the lot charged with the lien of the assessment; and the allegation is not denied by the answer of the defendant Porter. At the hearing, the plaintiff, against the objection of Porter, dismissed the-action as to all of the defendants except Porter, and the Court gave judgment against Porter alone, without any amendment of the complaint. This was error. The thirteenth section of the Act as amended in 1870 (Stats, p. 898) provides that the action shall be brought “ against the owners and all persons having an interest ” in the property sought to be charged. (See San Francisco v. Doe, 48 Cal. 560.) 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.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Justice Niles did not express an opinion.