132 P. 1048 | Cal. | 1913
This is an original application to this court by petitioners for a peremptory writ of mandate requiring *545 the superior court of San Joaquin County to make orders consolidating certain actions for the foreclosure of street assessment liens pending in said superior court, in each of which actions petitioners and the West End Improvement Company, a corporation, are the defendants, and the Farmers and Merchants Bank of Stockton, a corporation, is the plaintiff. There are 254 such actions. The street work on account of which the alleged liens are sought to be enforced was done on nine separate streets in the city of Stockton. All of such work was done pursuant to one resolution of intention and one resolution ordering the work done, but the work on each of the nine streets was done under a separate and distinct contract awarded separately, and, of course, a separate and distinct assessment for the work was made and issued as to each street. A separate action was instituted as to each lot shown on the assessments and diagrams on which the assessment remained unpaid. All the complaints for work on each street are identical except as to the number of the lot sought to be charged with a street assessment lien, as given in the assessment, the amount of the assessment charged thereon, and sought to be enforced, and the description of the lot sought to be charged. It appears from the complaints in such actions that each of said lots was assessed as the property of unknown owners, as is permitted by section 8 of the so-called Vrooman Act [Stats. 1885, p. 154]. The answer filed by each of the defendants in each of said actions is identical with the answer filed in each of the other actions. The claim of petitioners is that all of such actions that are for work on any one street done under one contract on account of which a single assessment was issued, should be consolidated. There are five such actions for work on Baker Street, involving five separate lots. The claim is that these actions should be consolidated. And so with the actions as to the lots on each of the other streets. The result would be that the 254 actions would be so consolidated that we would have nine actions, each involving all the lots of petitioners charged with liability for work on a single street. Motions for such consolidation were made in the superior court and denied. The lower court, however, did order that all such actions for work on any one street should be tried at the same time, the same being united solely for purposes of trial and the taking of testimony. *546
It has never been doubted that under such circumstances as here appear, there is a separate cause of action as to each lot of land separately assessed under a single contract and assessment, notwithstanding that the same person may own two or more of such lots. We do not understand that it is claimed by petitioners that there is not a separate cause of action as to each lot. There is no personal liability on the part of any owner of the land by reason of the assessment, but simply a separate lien on each lot of land for the particular amount assessed thereon, and no lot is liable for any part of the assessment on any other lot, even though the same person is the owner of both lots. The utmost that has been held in any of the cases cited is that the different causes of action may be united in the same complaint, where the different liens are created by a single assessment, the court in each case recognizing that there was a separate cause of action as to each lot. (See Hughes v. Alsip,
The statutory provision relative to consolidation of actions which is pertinent here is section
We may concede here, merely for the purposes of a determination of this application, that the circumstances of a particular application may be such as to show that the trial court could not refuse to consolidate without being guilty of a clear abuse of discretion, and that in such a case mandamus would lie to compel the making of an order of consolidation. But we are of the opinion that we are not warranted in holding that any such clear abuse of discretion is shown in this matter. The cases are now at issue and ready for trial. So far as the cost, expense, and trouble of actual trial and entry of judgment are concerned, it is not made to appear that anything would be saved to the parties by a consolidation if the trial court pursues the plan indicated by its order of trying all the cases arising out of a single assessment at the same time.
The real object of the attempted consolidation appears to be to escape certain attorneys' fees provided for by statute, as well as other fees fixed by statute. The Vrooman Act (sec. 12, see Stats. 1885, p. 157) provides that "in all cases of recovery under the provisions of this act, the plaintiff shall recover the sum of fifteen dollars in addition to the taxable costs, as attorneys' fees." It is settled that this means a fifteen dollar attorney fee for each action, no matter how many causes of action it may include, and that "the consideration that" if a plaintiff who united several such causes of action in one complaint had brought a different action on each cause of action and recovered a judgment in each, he could have recovered fifteen dollars attorney fee in each, does not entitle him to fifteen dollars on each cause of action when he unites them in one complaint, in view of the plain language of the statute. (Hughes v. Alsip,
The application for a peremptory writ of mandate is denied.
Shaw, J., Sloss, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred.