Driscoll v. Howard

63 Cal. 438, 1883 Cal. LEXIS 487

• Court: California Supreme Court
• Decided: May 30, 1883
• Status: Published

Opinion

By the Court.

The action ivas brought to enforce the alleged lien of a street assessment. The action was brought against Thomas B. Howard and Mary T. B. Howard as defendants. The complaint avers “that said defendants are the owners in fee of said described land, and in possession of and claiming to own the same, and exercising acts of ownership over the same. That the legal title of said land appears by deeds recorded in the recorder's office of said city and county to be in defendants.” The action was dismissed by plaintiff as to defendant Mary T. B. Howard. Upon the default of the defendant Thomas B. Howard, judgment wTas rendered against him and for a sale of the premises. From such judgment the defendant, Thomas B., appeals.

The original complaint was not amended. From the judgment roll it appears that the land being owned in fee by Thomas B. and Mary T. B. Howard, a decree for the sale of the premises was entered against the sole defendant Thomas B. Howard. But a decree cannot be entered in an action to foreclose the lien of a street assessment, unless all the owners of the lot are before the court. (People v. Doe, 48 Cal. 560; Hancock v. Bowman, 49 Cal. 413; Clark v. Porter, 53 Cal. 409; Diggins v. Reay, 54 Cal. 525; Harney v. Appelgate, 57 Cal. 205.)

Judgment reversed and cause remanded for further proceedings.