294 P. 760 | Cal. Ct. App. | 1930
This is an appeal by Leonard J. Woodruff from an order made by the Honorable Walter S. Gates, Judge of the Superior Court in and for Los Angeles County, giving respondent immediate possession and use of the real property belonging to appellant, described in said order.
Appellant was one of the defendants in an action brought by the City of Los Angeles to condemn for street purposes a portion of a lot belonging to him, as well as property of the other defendants. The defendant Woodruff waived a jury trial and the hearing before referees appointed in said action was held in September, 1927. On April 12, 1928, the referees returned and filed their report, fixing the value of the land to be taken from appellant at $162,496, and his damages at $16,000, or a total damage of $178,496. The damages were fixed as of the date of the issuance of the summons, August 6, 1926. The report came on for hearing before the Honorable Hartley Shaw, a Judge of said Superior Court, on the sixteenth day of July, 1928, on the objections and exceptions filed thereto by the appellant herein, at which hearing witnesses were examined on behalf of both respondent and appellant, and on November 28, 1928, said judge made his findings of fact and conclusions of law, to the effect that the value of the land taken and severance damages were as found by the report of the referees; that the use to which said property sought to be condemned was to be applied was one authorized by law; that the acquisition thereof was necessary to such use and that upon payment of said sum so awarded to the defendant or into court for his benefit, together with costs of suit, the plaintiff should be entitled to a decree condemning such land to the use of the plaintiff and the public for the widening of Cahuenga Boulevard. A judgment based on such findings and conclusions was also signed the same day, to the effect that upon payment to the several defendants or into court *251
for their benefit severally of the amounts awarded them the land sought to be condemned should be condemned for the use of said city and the public for such purposes, which judgment fixed appellant's costs at $21.50. An appeal was taken from said judgment by the defendant Woodruff, appellant here, which was decided by this court on December 3, 1929 (
Appellant contends that the lower court erred (1) in overruling appellant's motion to quash said order to show cause and (2) in making the order for immediate use and possession of said land, and in refusing to fix a sum as a fund to pay further damages and costs.
[1] (1) Counsel for appellant urge that inasmuch as the affidavit on which the order to show cause was based did not show that the costs of $21.50 had been deposited, the motion to quash should have been granted. The record shows that the costs were deposited before the motion was heard, and consequently there would not seem to be any merit in the contention or any prejudice resulting to defendant.
(2) Appellant under his second contention urges that the order for immediate possession should not have been made (a) because there was no final judgment entered in the case as provided by section 31 of the 1903 Street Opening Act, nor any final order condemning the land at the time the order was made, (b) because at such time full compensation had not been deposited in court for the reason that no interest had been paid on the interlocutory judgment, and (c) because the order did not provide a fund to insure the payment of any further damages and costs that might be awarded.
[2] (a) Appellant contends that there should have been a final judgment under section 31 of the Street Opening Act of 1903. Section 12 of such act provides: "Upon the confirmation of the report of the referees, or receipt of the verdict of the jury, or the filing of the findings of the court, the court shall make and enter an interlocutory judgment in accordance with such report, verdict or findings adjudging that upon payment to the respective parties, or into court for their benefit, of the several amounts found due them as compensation, and of the costs allowed to them, the property involved in the action shall be condemned to the use of the plaintiff, and dedicated to the use specified in the complaint." Section 31 provides: ". . . On satisfactory proof being made to the court of payment of the amounts awarded by the interlocutory judgment to the *253 respective parties entitled thereto, or into court for their benefit, it shall direct the interlocutory judgment to be satisfied, and shall make and enter a final judgment, condemning the lands described in the complaint to the use of the plaintiff for the purposes specified in the complaint."
The provisions of section 12 have been strictly followed in the instant case. An appeal was taken from the interlocutory judgment rendered and the proceedings for the order for possession under section 1254 of the Code of Civil Procedure were taken while such appeal was pending. It is very evident from a reading of section 1254 that the judgment referred to there is the judgment referred to in section 12 of the Street Opening Act awarding damages to the plaintiff, and not the final judgment condemning the land. The language of section 1254 is so clear that it is doubtful if appellant would have made this contention if it were not for certain language appearing in the case of County of San Mateo
v. Coburn,
There can be no question but that the interlocutory judgment, so called, is a final judgment. The Supreme Court, in the case ofCalifornia Southern R.R. Co. v. Southern Pacific R.R. Co.,
The case of Heilbron v. Superior Court,
[3] (b) Counsel for appellant urge that interest should have been computed on the award made, citing Act 3757, page 1384, Deering's General Laws of California, which provides that "the rate of interest . . . on . . . judgments rendered in any court of this state, shall be seven dollars upon the one hundred dollars for one year". Counsel urge that interest not having been so computed, either from a date commencing thirty days after entry of the interlocutory *255
judgment or from August 17, 1929, the date when plaintiff had sufficient money on hand to pay the judgment, and such amount not having been deposited, full compensation was not paid into court. Section 1249 of the Code of Civil Procedure provides among other things: "If an order be made letting the plaintiff into possession, as provided in section 1254, the compensation and damages awarded shall draw lawful interest from the date of such order." Such provision, however, is held by the Supreme Court to not apply to section 1254 as it now exists. (Vallejo etc. R.R.Co. v. Reed Orchard Co.,
[4] (c) Must the court in making an order under section 1254 of the Code of Civil Procedure in all cases require the deposit of a sum in addition to the amount of the judgment? The facts involved in the case of Spring Valley Water Co. v.Drinkhouse,
In section 1254 we find this language: "In ascertaining the amount to be paid into court the court shall take care that the same be adequate and sufficient." It is plain that the legislature in this cautionary advice to the court shows its desire that in so far as is humanly possible, considering the discretion it gave the court in fixing the amount, an amount should be paid sufficient to cover any award that might be made in case the judgment or order is reversed on appeal and a larger sum fixed on the new trial; and it might be argued that inasmuch as the interlocutory judgment is a fixed amount the court could only need such advice in fixing the "further sum" mentioned, implying that in every case such "further sum" would be a part of the amount to be "ascertained" by the judge and "paid into court". We must take notice, however, of the fact that all appeals taken are not by the defendant by reason of inadequacy of the award, but that the plaintiff as well may appeal because of its exorbitance. Again, not every appeal is successful nor does every new trial increase the amount of the former judgment, and the section plainly recognizes this well-known fact by providing that "in all cases where a new trial has been granted upon the application of the defendant, and he has failed upon such trial to obtain greater compensation than was allowed him upon the first trial, the costs of such new trial shall be taxed against him". Such argument does not give effect to what would seem to be the clear language of the section, and the cautionary advice would seem to apply only if in the discretion of the judge such "further sum" is required.
Are we compelled to read the word "may" as "must"? Such a change would not only be doing violence to the section as it seems to read, but to the English language as well; and reading it as "shall" would not, in our opinion, change the discretionary form of the sentence. The legislative intent was, as we have said, to provide, so far as humanly possible, to have deposited a sufficient sum to cover any award that might be made, but that intention is not helped, so far as we can see, by trying to make the section mandatory in the respect claimed by appellant, inasmuch as even then the amount would necessarily be in the discretion of the court, while the clear reading leaves the requiring of the *258
further amount discretionary, and many cases would clearly not need such further sum to sufficiently secure the payment of the award. If the legislature had desired to remove the chance of failure in the sufficiency of the deposit by reason of the exercise of discretion on the part of the court, it would no doubt have required the deposit of the amount fixed by the defendant in his answer, as the New York code provides (N.Y. Code Civ. Proc., sec. 3380), or in the largest amount testified to by any expert at the time of trial. So long as an appeal is pending the action of the court in satisfying the judgment under section 31 of the Street Opening Act of 1903 is stayed (secs. 946 and 949, Code Civ. Proc.), so there would seem to be no possibility of obtaining the final order of condemnation until the interlocutory judgment becomes final, unless the defendant is consenting thereto either expressly or by necessary implication; and if the award should be increased as a result of the appeal there would be no final judgment condemning the land until deposit or payment of the additional amount, and if such deposit or payment were not made the court having jurisdiction of the subject matter and parties would oust the party seeking to condemn the property and mete out to the owner adequate damages for the temporary use and injury, applying the deposited sum thereto. (State ex rel. Volunteer Min. Co. v. McHatton,
[5] The fixing of the "further sum" being in the discretion of the court and based upon conflicting evidence, viz., the interlocutory judgment, report of referees, etc., and the affidavit filed by appellant, it will not be disturbed by us. (Daniels v. Church,
There would seem to be no error committed by the court below in denying the motion to quash the order to show cause or in making the order for immediate possession.
Judgment affirmed.
Works, P.J., and Thompson (Ira F.), J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 30, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 2, 1931.