Elberg

In the Department opinion rendered in this case it was decided that the judgment appealed from, entered after a general demurrer to the complaint had been sustained, should be affirmed. This was upon the ground that no cause of action was stated against the defendant county, which was not a proper party *317 defendant, and against which plaintiff had no claim or demand.

The point, however, had not been presented in the briefs of counsel, and it was urged that the decision worked a hardship upon appellant, who had thus been given no opportunity to argue the question. The rehearing was therefore ordered.

Upon a second examination we are satisfied with the Department opinion. Appellant is in the unfortunate position of claiming a cause of action against B which he seeks to prosecute against A. He has stated no cause of action against B, and could not amend to substitute A for B. His only course would be to institute a new suit against the true defendant.

The reasoning and authority in support of the conclusion that the county is not a proper defendant will be found set forth at length in Pacific Mut. Life Ins. Co. v. County of San Diego, ante, p. 314.

The judgment is…