Opinion
Sac. No. 982.
October 17, 1903.
APPEAL from a judgment of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.
The facts are stated in the opinion of the court.
Joshua B. Webster, for Appellant.
S.M. Spurrier, for Alfred Joyce, Respondent.
Charles De Legh, for David Winders, Respondent.
This is an action to foreclose the lien of a street assessment. Alfred Joyce, one of the defendants, demurred to the complaint upon the ground that it did not state a cause of action, and in particular that it appeared upon the face of the complaint that the lien had expired before the action was begun. The demurrer was sustained without leave to amend. Fourteen days thereafter, the plaintiff having made no application for leave to amend, and notice of the order overruling the demurrer having been in the mean time served upon him, the court entered judgment upon the demurrer that the plaintiff take nothing by reason of the action as against the defendant Joyce, and that Joyce recover his costs. From this judgment the plaintiff appeals.
There can be no question that the complaint was insufficient, and that the demurrer was properly sustained. Section 9 of the Street Improvement Act declares that the amounts assessed for improvements shall be a lien upon the lands assessed for the period of two years from the date of recording the warrant, assessment, diagram, and certificate. The complaint alleges that this occurred on March 17, 1898. The complaint was filed on April 13, 1900, more than two years thereafter. Furthermore, the resolution of intention as set forth in the complaint shows that the improvement in question consisted of lateral sewers, to be constructed on certain named streets in the city of Stockton, and branch sewers to be laid from the said lateral sewers to the curb-lines on each side, and manholes to be constructed at each of the terminations of the lateral sewers and at certain street intersections. It fails, however, to state, either directly, or by inference, the material of which either of the sewers or the manholes should be constructed; nor does it mention the size of either, or the number of branch sewers to be constructed to the curb-line. These defects would make the resolution of intention void under the decisions in Schwiesau v. Mahon, 128 Cal. 114, and Fay v. Reed, 128 Cal. 357.
The plaintiff contends that it was error for the court below to sustain the demurrer of Joyce without giving plaintiff leave to amend, citing Gallagher v. Delaney, 10 Cal. 410. A period of fourteen days elapsed after the order was made sustaining the demurrer before the entry of judgment, during which the plaintiff had notice of the order, but made no application whatever for leave to amend. Nor does he upon this appeal suggest any amendment which he could make which would cure the palpable defects in the complaint. The case of Gallagher v. Delaney has no application where the plaintiff makes no offer to amend. The party cannot object in this court that he is not permitted to amend by the court below when he made no application there to be allowed to do so. (Smith v. Yreka W. Co., 14 Cal. 202.) The case cited by the appellant was distinguished in the latter case, and also in Borland v. Thornton, 12 Cal. 439, in which cases it is clearly decided that the rule of Gallagher v. Delaney has no application, unless it appears either that the party has made an application to amend, or that he could amend so as to obviate the objection upon which the demurrer depends. Neither of these conditions is apparent here.
David Winders, another defendant in the action, after the order was made sustaining the demurrer of the defendant Joyce to the plaintiffs complaint, and before judgment was rendered on the demurrer, appeared in the action and filed a so-called cross-complaint, setting up a judgment lien against the property, and asking that the same be declared superior to the alleged lien of the plaintiff. To this cross-complaint the plaintiff, before the entry of judgment on the demurrer of Joyce, filed an answer. The appellant claims that it was error to give judgment in favor of Joyce on his demurrer to the complaint until the issues arising from the cross-complaint of Winders had been disposed of. There is nothing in this contention. The complaint failed to state facts sufficient to constitute a cause of action against Joyce, and the judgment given upon the demurrer can have no greater effect than to prevent the plaintiff from proceeding upon his complaint as against Joyce. It does not affect the other parties to the action, nor does it prevent the court from proceeding upon the cross-complaint of Winders and determining all the issues tendered thereby.
The judgment is affirmed.
Angellotti, J., and Van Dyke, J., concurred.