Coburn v. Townsend
37 P. 202
Cal.
1894
Check Treatment
McFarland, J.

These cases are substantially alike, and will be considered together. Each action was *235against the defendants, as sureties, upon a bond in certain condemnation proceedings. The bond was given in pursuance of an order of the court in the condemnation proceedings, that the plaintiff therein might, at the commencement of said proceedings, take possession of lands claimed by plaintiffs in these present actions, and sought therein to be condemned, upon giving an undertaking as provided by section 1254 of the Code of Civil Procedure, as it stood prior to 1880. The court, in each case, rendered judgment for defendants, and plaintiff appeals in each case from the judgment, upon the judgment-roll alone.

The judgments must be affirmed. . In the first place, the provision of the code, and of the statute which preceded the code, under which the orders for possession were made in the condemnation proceedings, was held to be and was unconstitutional, and the bonds or undertakings here sued on were void. (San Mateo Water Works v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Stockton etc. R. R. Co., 53 Cal. 209.) In the second place,-it is found by the court that plaintiff commenced a certain action against Charles Goodall etal., in which he recovered damages in the sum of ten thousand dollars, which was paid; and “ that the said damages so recovered by the said plaintiff Coburn, and so paid as aforesaid, cover all the alleged damages sued for in this action, and other damages (except the counsel fees hereinbefore stated), and that the alleged possession and trespass in said action of Coburn v. Goodall covers and includes all the alleged possession and trespass for which recovery is sought to be had in this suit, and that said damages were recovered by the said plaintiff upon the claim that the said alleged use and possession named in the complaint herein as being held against said Coburn was really and in fact the possession of said defendants in said suit of Coburn v. Goodall.” This being so, appellant cannot again recover from the sureties what was paid by the principals. As to the counsel fees, in the first place it does not appear that they *236were withdrawn or were not litigated and determined in the case of Coburn v. Goodall; and, in the second place, we do not know of any law that allows counsel fees in a general judgment for a defendant in a proceeding for condemnation. (Mitchell v. Hawley, 79 Cal. 301.) We see no reason for a reversal of the judgment.

The judgment appealed from in each of the above cases is affirmed.

De Haven, J., and Fitzgebat.d, J., concurred in the judgment on the second ground discussed in the opinion of Mr. Justice McFarland.