Pueblo Trading Co. v. El Camino Irr. Dist.

169 F.2d 312, 1948 U.S. App. LEXIS 2212

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 1948
• Docket: No. 11798
• Status: Published

Opinions

HEALY, Circuit Judge.

In 1945 appellant obtained a default judgment against El Camino Irrigation District for money owing on outstanding bonds of the district. The judgment further directed that the assessments needful to pay it be made by the district’s board, and that in the event the latter failed to act the Board of Supervisors of Tehama County make provision for payment by the levy of assessments in the manner prescribed by Division 11 of the Water Code of the State of California. In the respects last mentioned the judgment went beyond the prayer of the complaint. The county supervisors having taken no action, appellant brought contempt proceedings against them and the county assessor, appellees here. Its sworn petition prayed “that an order be issued citing the supervisors and the aforesaid named officers of the County of Tehama to show cause before this court why they should not he punished for contempt of court for failure to carry out the orders of this court; and that such further order be made in the premises as will insure provision for payment of said judgment by levy and collection of taxes and assessments on the lands of said district as provided by law.”

The county officials demurred to the petition on the grounds (1) that the order directing them to make the levy was void because beyond the prayer of the complaint, (2) that none of them had been made parties to the suit or in any manner brought before the court, and (3) that it did not appear from the petition that appellant has pursued the remedy provided by §§ 26550 to 26553 of the California Water Code.¹ The court sustained the demurrer and dismissed the proceeding.² On the appeal it is claimed that the ruling was error.

We think otherwise. The demurrer (properly treated by the court as a motion to dismiss) was well taken. The order directed toward the county officials went beyond the scope of the complaint, and to that extent the judgment, being by default, was a nullity. Metropolitan Life Ins. Co. v. Welch, 202 Cal. 312, 260 P. 545. Again, these officials had not been made parties to the action against the district and were given no opportunity to be heard in it, notwithstanding they were entitled, under the state law, to urge equitable defenses to a demand that they levy assessments. El Camino Land Corp. v. Board of Supervisors of Tehama County, 43 Cal.App.2d 351, 110 P.2d 1076.

No error appearing, the judgment of dismissal is affirmed.

1 The district attorney of Tehama County also filed in the proceeding his personal affidavit embodying a letter of the attorney general of the state commenting on the serious economic consequences of an enforced levy and calling attention to a decision of a state coürt bearing on the subject.

2 Appellant’s petition stated but one cause, namely, for peremptory relief predicated on an asserted contempt. We have not considered and do not decide what other form of relief, if any, appellant may be entitled to.