Diggins v. Reay

Department No. 2, Thornton, J.: This is an action to enforce a street assessment. The appeal is prosecuted by the defendant from the judgment. The action was brought against Joseph W. Eeay and Joseph Eeay, who, with several other persons named as defendants, were alleged to have been at the time the assessment was made, and still continued to be when the action was commenced, the owners in fee of the lot of land assessed. It does not appear from the transcript which contains the judgment roll, that Joseph Eeay was ever served with summons, or appeared in the case in person, or by attorney. Neither does it appear from the record that any disposition of the case was made as to Joseph Eeay. The judgment is against the other defendants. Joseph Eeay’s name is not mentioned in it. It is contended on behalf of the appellants that the judgment should be reversed, because the case has not been disposed of as to the person above mentioned. We think the point is well taken. Further, it is held in Hancock v. Bowman, 49 Cal. 413, which was an action to enforce a street assessment, that the statute gives no authority for a decree enforcing the lien, in the absence of one of the parties in interest. The statute under which the lien herein is alleged to exist, is the same as to parties as that construed in Hancock v. Bowman. Joseph Reay is alleged here to be one of the parties who owned, the land on which the assessment was levied, and in accordance with the rule as declared in Hancock v. Bowman, he [527] should have been served with summons, and brought before the Court as a party. There is no other error in the record, but the foregoing considerations bring us to the conclusion that the judgment must be reversed. So ordered. Sharpsteih, J., and Myrick, J., concurred.