I concur in the judgment, on the last ground stated in the foregoing opinion. The whole controversy between these parties could have been fully determined under the issues raised by the complaint and answer, and the cross-complaints were entirely unnecessary. The prevailing custom of encumbering the records and complicating the issues by unnecessary pleadings should be discouraged, and the judgment, if right, should not be reversed, for the reason that the demurrers were sustained to these useless pleadings.
A petition for a rehearing having been filed, the following opinion was rendered thereon on the 18th of July, 1890:—
The Court.—Rehearing denied. The decision of the Department is in conflict with an expression used by the court in Bank in Heilbron v. Canal Co., 76 Cal. 15, where it says: “The action is one in tort, and no affirmative relief could _ be granted.” But the expression so used in the case cited is in conflict with the express provisions of section 442 of the Code of Civil Procedure, if *590construed as meaning that in no case of an action for tort a cross-complaint would he proper, or affirmative relief be granted. There are many cases of that kind where a cross-complaint might be proper, and affirmative relief be granted. The expression so used in Heilbron v. Canal Co., supra, stands alone, and is not supported by any of'the other cases cited, and our attention now being called to it, it is overruled. This expression was not necessary to the decision in that case.