69 P. 842 | Cal. | 1902
This is an appeal from an order denying the appellant’s motion to set aside a judgment of dismissal of date February 17, 1898. The dismissal was entered by the plaintiff’s attorney, with the consent of the appellant, but it is claimed by the latter that in giving his consent he acted under a misapprehension of the law and of the facts, and of his obligations to parties represented by him, and for whose benefit the suit was brought. The dismissal suit was brought by Block, tax collector of the city and county of San Francisco, with the other plaintiffs, to set aside a judgment of date May 25, 1881, recovered by the defendant Osborne and the predecessors in title of defendants Schweitzer and the Crocker Estate Company against Tillson, then tax collector, adjudging the assessment known as the “Dupont Street Assessment” to be void, and enjoining the defendant and his successors in office from proceeding under the assessment to sell the lands of the plaintiffs therein. The present plaintiff Sheehan was substituted, pending the motion, as successor in office of Block. The other plaintiffs are owners and holders of Du
It may be that the last point is well taken: Bailey v. Johnson, 121 Cal. 562, 54 Pac. 80. It is a question whether the judgment against the former tax collector could, as it purported to do, bind his successor in office. The tax collector is not a corporation sole, whose successors constitute the same fictitious person, and are, therefore, bound by a judgment against a predecessor, but a mere agent of a corporation aggregate—that is, of the county. There is no direct privity, therefore, between a tax collector and his successors in office, nor can the latter be regarded as “successors in interest” to their predecessors, for neither have any interest in the tax, nor, except as personally affected, in the question of its validity: Bailey v. Johnson, supra. It may be, indeed, where a judgment is recovered against a tax collector, enjoining the enforcement of the assessment on the ground of its invalidity, that the city and county will be estopped by it; and no doubt, if it has participated in the defense, and thus made itself the real party of record, it will be so estopped: Loftis v. Marshall, 134 Cal. 394, 86 Am. St. Rep. 286, 66 Pac. 571. But under our code persons estopped by a judgment inter partes are divided into two classes, which seem to be exclusive of any others, namely, “the parties and their successors in interest by title subsequent to the commencement of action.” The latter class corresponds to such privies only as .are such by reason of “successive relationship to the same rights of property,” and thus excludes privies by reason of “mutual . . . . relationship” to such rights (Bouv. Diet., art. “Privity,” and authorities cited), who can be bound only, if at all, when they come under the description of “parties to the suit” (Code Civ. Proc., sec. 1908, subd. 2). If, therefore, the plaintiff Block was bound by the former judgment, it was not by reason of his being successor in office of the defendant therein, or of any other direct relation between the two, but because his principal, the city and county, and therefore himself as its present agent, was estopped. Whether, in fact, the city and county is bound by the judgment, need not, in its absence as a party, and in the absence of discussion in the briefs, be considered; but, if it be not bound, it is clear the plaintiff Block was not bound, and therefore had no cause
There is another ground on which, perhaps, it might be held that Block had no cause of action. The stipulation on which the judgment was entered also provides, on the disposition of the appeals in the representative eases, for the entry of judgment to correspond with the judgment of this court; and we can see no reason at the present time why a judgment might not now be entered as stipulated. But the point not being argued by the counsel, we leave it without definite decision.
Other objections are urged to the sufficiency of the complaint, but these are such as, if well taken, might be cured by amendment; and it would therefore be improper to dispose of them on this motion.
From what has already been said we must regard as untenable the proposition that Block was a merely nominal party, and therefore had no control of the suit, and also the •inference that the suit might be dismissed without his consent. The terms of the judgment expressly refer to him, and, if the judgment as to him was valid—which is the theory of respondent—he was in fact a party, and as such entitled to maintain a suit or other proceeding to vacate it. But he also represented in the suit his principal, the city and county, and indirectly all the bondholders, and must, therefore, a fortiori, have had the control, or right to control, the suit.
As to the appellant’s showing on the motion to vacate the order of dismissal, we think it was sufficient. On many points the affidavits of the parties are conflicting, but the ultimate fact asserted in Block’s affidavit is that in consenting to a dismissal he did so in ignorance of his obligations to other parties interested, and of the fact that their interests would be injuriously affected. This is not contradicted, but rather confirmed, by the affidavit of the attorney who obtained his consent to the dismissal; for this not only fails to show that Block was advised as to his obligations, but shows affirmatively that he yielded to the request on the ground that he
The remaining point urged by the respondent is that the term of office of the appellant has expired, of which fact it is claimed the court will take judicial notice. This may be admitted, but it does not follow that the case cannot be prosecuted further, or that it cannot be so prosecuted without substitution of his successor in office. As to the latter point, the rule is different in case of the death of a party; but “in case of any other transfer of interest the action or proceeding may be continued in the name of the original party”: Code Civ. Proc., sec. 385. If the succeeding party desires, he can make his application to be substituted; otherwise the suit will proceed without such substitution. This renders it unnecessary to consider the point that the present tax collector is not the successor of his predecessors elected under the former law, though we see no reason to doubt that he is.
We advise that the order appealed from be reversed and the cause remanded, with directions to the court below to vacate the order of dismissal and to reinstate the case.
We concur: Cooper, C.; Haynes, C.
For the reasons given in the foregoing opinion the order appealed from is reversed and the cause remanded, with directions to the court below to vacate the order of dismissal and to reinstate the case.