City of Santa Barbara v. Huse

51 Cal. 217

• Court: California Supreme Court
• Decided: July 1, 1876
• Docket: No. 4776
• Status: Published

Opinion

By the Court, Crockett, J.:

If it be assumed that the authorities of Santa Barbara had competent authority, by ordinance, to create a lien on real property for street improvements (a point not necessary to be decided), there is no provision in the ordinance authorizing a suit in rem against the real estate alone. On the contrary, the ordinance clearly contemplates that the action must be against the owner to enforce the lien. The defendant Huse was sued as one of the owners, and his answer was a general denial. At the trial he admitted all the allegations of the complaint, “ except the allegation as to the ownership or title to the said land described in the complaint.” On this admission, and without any proof of ownership as to Huse, a judgment was entered enforcing the lien against the land, the plaintiff waiving a personal judgment against the defendants, and Huse appeals.

It is clear that the judgment cannot be supported. To authorize a judgment for the plaintiff, assuming the ordinance to be valid, it was necessary to allege the ownership, and to prove it if denied. It was denied, and not proved.

Judgment reversed and cause remanded. Eemittitur forthwith.