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Clark v. Porter

Supreme Court of California
Jan 1, 1879
53 Cal. 409 (Cal. 1879)

Summary

In Clark v. Porter, 53 Cal. 409, and Diggins v. Reay, 54 Cal. 525, it was distinctly held that in such a case as this, the statute gives no authority for a decree enforcing the lien, in the absence of any of the parties interested.

Summary of this case from Robinson v. Merrill

Opinion

         Appeal from the District Court of the Third Judicial District, City and County of San Francisco.

         Action on a street assessment. The plaintiff had judgment, and defendant Porter appealed.

         COUNSEL:

         William Levison, for Appellant.

          J. C. Bates, for Respondent.


         JUDGES: Rhodes J. Mr. Justice Niles did not express an opinion.

         OPINION

          RHODES, Judge

         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. Doc , 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.


Summaries of

Clark v. Porter

Supreme Court of California
Jan 1, 1879
53 Cal. 409 (Cal. 1879)

In Clark v. Porter, 53 Cal. 409, and Diggins v. Reay, 54 Cal. 525, it was distinctly held that in such a case as this, the statute gives no authority for a decree enforcing the lien, in the absence of any of the parties interested.

Summary of this case from Robinson v. Merrill
Case details for

Clark v. Porter

Case Details

Full title:GEORGE CLARK v. GEORGE K. PORTER et als.

Court:Supreme Court of California

Date published: Jan 1, 1879

Citations

53 Cal. 409 (Cal. 1879)

Citing Cases

Robinson v. Merrill

To maintain his action, it was [25 P. 163] necessary that the plaintiff make all the owners of the property…

Parker v. Altschul

The complaint should have been amended so as to show that the persons dismissed were not owners. (Clark …