Dyer v. Barstow

By the Court: This action is brought on two street assessments in San Francisco. The demurrer that several causes of action were improperly united in the complaint should have been sustained. There is no pretense that the laws in respect to streets or street improvements warranted the joinder, and it is clear that section 64 of the Practice Act did not authorize it. The claims of the plaintiff do not “arise out of contracts” within the meaning of that section. The contracts there spoken of were contracts to which the person sued was a party. It is settled, that the owners of property adjacent to a street improvement are not, in any sense, parties to the contract between the contractor and the Superintendent of Streets; and that they are brought into relations with the proceeding only when the assessment is issued. (Emery v. San Francisco Gas Co., 28 Cal. 345; Himmelmann v. Steiner, 38 Cal. 175; Himmelmann v. Spanagel, 39 Cal. 389.) In the case last cited it was further held, that the assessment was the “transaction” (within the meaning of section 47 of the Practice Act) out of which the cause of action arose; and that such an assessment was a municipal tax, levied by the corporation upon the property supposed to be benefited by the improvement. There was no express provision of statute permitting the plaintiff to unite in the same complaint two demands arising out of separate assessments. In our opinion, causes of action could not be united, except when they were authorized by the Practice Act. But if the law were otherwise, wo have been referred to no rule of practice, at law or in equity, [655] which, at the common law, would have justified the course pursued by plaintiff in the present action. Judgment and order reversed and cause remanded, with directions to the court below to sustain the defendant’s demurrer to the complaint.