SIMON HIMES v. N. P. JOHNSON, 61 Cal. 259

The Court: The interest which is claimed by appellant that Alfred Himes had in the subject-matter of this action would not make him a necessary party to it. (C. C. P. 384.) Therefore the plea in abatement raised an immaterial issue, which it was unnecessary to submit to the jury. We are unable to see what relevancy testimony as to the rights of persons on the stream below the premises of both plaintiff and defendant could have to the issues in this action, and we think that the objection to the introduction of such testimony was properly sustained.

The objections made to the instructions given to the jury are, in our opinion, untenable; and we do not think that the Court erred in modifying, as it did, one of the instructions-which appellant’s attorney requested to be given. The plaintiff recovered a judgment for fifty dollars damages and the costs of the action. We think that the Court erred in giving the plaintiff a judgment for costs. It is true that the plaintiff prayed an injunction, but that was denied, and the action thereafter should haye been treated as one for damages only.

It is quite clear that a judgment for fifty dollars damages in such an action would not carry costs. Judgment and order reversed.