39 Cal. 389 | Cal. | 1870
delivered the opinion of the Court:
This is an action to recover an assessment for grading a street. It is alleged in the complaint, that certain persons other than the alleged owners of the lot, “have, or claim to have, some interest in, or claim upon said described premises.” The defendants, who are the respondents here, did not disclose or set up the nature or extent of their interest or claim, in or to the premises, nor did they adduce any proof on that point. It was held, in Poett v. Stearns (28 Cal. 226), and Anthony v. Nye (30 Cal. 401), that in complaints in actions to foreclose a mortgage, the general allegations that the defendants had, or claimed to have, some interest in the premises, was sufficient, and that the defendants, if they have any interest in the premises, must set it out, if they desire to defend the action. The reason of the rule is applicable to a case of the character of the one at bar. The defendants cannot rely on the pleadings as they now stand, as admitting that they have any interest in the premises.
The findings that the defendants, Spanagel and Townsend, had, or have, an interest in the premises, cannot be sustained, as there is no evidence in the transcript tending to prove that fact.
The inquiry into the nature of their interest, becomes
But, assuming that the defendants hold such an interest in the lots as would authorize them to recover the damages for the alleged injury to the lots, it does not necessarily follow that they are entitled to avail themselves of such damages by way of counter claim. The doctrine is well settled in this Court, in Emery v. San Francisco Gas Co. (28 Cal. 345); Emery v. Bradford (29 Cal. 75); Nolan v. Reese (32 Cal. 484), and Himmelmann v. Steiner (38 Cal. 175), that the owners of property adjacent to a street are not, in any sense, parties to the contract, for the improvement of a street, entered into by a contractor with the Superintendent of Streets. They are brought into relation with the proceeding for the first time, when the assessment is issued. The several steps in the proceedings before the Board of Supervisors, and in 'entering into and performing the contract, are averred in the complaint for the purpose of showing that they were regular and sufficient to .justify the issuing of the assessment; but the assessment is the “ transaction within the meaning of Section 47 of the Practice Act, out of which the cause of action must arise, which the defendants are authorized to set up as a counter claim. It is apparent that the alleged demand did not arise out of the assessment, nor, indeed, out of the proceedings upon which it is based, and, therefore, are not available as a counter claim.
The acts occasioning the damages complained of were mere naked trespasses, and would not be held to arise out of the contract, were the contract considered as the “transaction ” upon, or in respect to, which the action was brought.
Judgment reversed, and cause remanded for a new trial.