72 P. 915 | Cal. | 1903
Lead Opinion
Appeal by the defendant from the judgment and from the final order condemning land of defendant for a private road. Wilhelmina McLennan filed her petition with the board of supervisors of Madera County for a private road. The proceedings before the supervisors culminated in an order to bring this action to condemn defendant's land.
1. It is urged that the bond given in support of the petition for the road was insufficient. The petition and bond are set out in the complaint. The bond was in the penal sum of six hundred dollars, and recited that the probable cost of viewing *130
and laying out of the proposed road would not exceed half that amount. The objection is, that section 2692 of the Political Code requires a bond not only in conformity with the bond required in petitioning for a public road (sec. 2683), but that it shall be further conditioned that the "bondsmen will pay to the person over whose lands said road is sought to be opened his necessary costs and disbursements in contesting the opening of such road, in case the petition be not granted and the road finally opened." It is contended that this provision can only be met by an unlimited and unconditional promise on the part of the bondsmen, whereas the bond here given was for a limited amount Appellant relies on Geary v. Board of Supervisors,
2. The judgment of condemnation was made March 11, 1902, and was filed March 12, 1902. The final order of condemnation was made and filed May 23, 1902, and concludes as follows: "Done in open court, this twenty-third day of May, 1902, for and as of date March 11, 1902." It recites: "It appearing that a judgment was rendered in favor of the *131 plaintiff in the above-entitled action on the eleventh day of March, 1902, wherein it was ordered that the plaintiff pay to the defendant the sum of," etc. It is further recited: "And it further appearing that the sum of $66.25 was deposited with the clerk of the superior court. . . . on the thirtieth day of January, 1902, by the plaintiff in the above-entitled action, in compliance with said order, now, therefore," etc. Upon this showing several points are made. It is said that the final order antedates the preliminary judgment and took effect March 11, 1902; that there is no evidence showing payment of the damage money, and that appellant had no notice of the application for the final order, and no opportunity to be heard in opposition to its entry, and that it was inadvertently signed by the trial judge, as it appears that he had before him only the judgment-roll; and lastly, that the damage money was paid, if paid at all, more than a month before the judgment was entered, and was therefore unauthorized. The final order shows on its face that it was made and entered on May 23, 1902, and the court had no power to make it until after the judgment of condemnation. Why the court undertook to give it effect of March 11th is not apparent. If there was any occasion for such provision, and it was competent for the court to make such a nunc pro tunc order, it will be presumed that it did not take effect until after the judgment was entered on the same day — March 11th. The final order should follow the judgment, and it will be presumed that it did so follow. We think, however, it took effect when entered, May 23d, and the clause "for and as of date March 11, 1902," performs no other office than to identify the order as supplementing the judgment of the latter date.
This is an appeal on the judgment-roll alone. Appellant cannot be heard to complain that evidence was wanting to show payment of the damage money. The recital is conclusive. If the final order was entered without notice to appellant of the hearing, the record should so show. There is a certificate signed by the trial judge, printed in the record, but it bears date subsequent to the notice of appeal and subsequent to stipulation of counsel as to printing the transcript, and forms no part of the judgment-roll. How it got into the record does not appear, and respondent objects to its consideration. *132
We cannot look to it in support of appellant's claim that he was given no opportunity to be heard, or as evidence that the trial judge inadvertently signed the final order. The statement in the final order that the damage money was deposited January 30, 1902, before the damages were adjudged, is probably a clerical error, arising from the fact, which appears in the judgment, that the hearing took place on that day, but the judgment was not entered until later. Section 1251 of the Code of Civil Procedure provides that "The plaintiff must within thirty days of the final judgment pay the sum of money assessed," etc. Payment or deposit after that time would be too late. (Glenn County v. Johnston,
3. It is contended that the judgment is one in personam, on which an execution will not issue, the plaintiff being a municipal corporation (Alden v. County of Alameda,
4. It is claimed that the description of the land condemned is uncertain, and therefore insufficient. (Citing In re SanFrancisco etc. R.R. v. Gould,
5. It is contended that the statute authorizing the condemnation of land as a private road is unconstitutional, — 1. Because private property cannot be taken for a private use; and 2. Section 2692 of the Political Code is special legislation. Mr. Justice Sanderson, in Sherman v. Buick,
6. Error is claimed in the judgment as to the costs, which was, that each party should pay its own costs. Section 1255 of the Code of Civil Procedure provides that "Costs may be allowed or not, and if allowed, may be apportioned between the parties on the same or adverse sides, in the discretion of the court." But, aside from the statute, appellant is in no position to raise the question, having appealed on the judgment-roll. (Alameda v.Crocker,
The judgment entered March 12, 1902, should be affirmed, and also the final judgment entered May 23, 1902.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment entered March 12, 1902, is affirmed, and also the final judgment entered May 23, 1902.
Henshaw, J., Lorigan, J., McFarland, J.
On June 22, 1903, the following opinion was rendered by the court in Bank, in passing upon the petition of appellants for a rehearing: —
Addendum
The petition for a rehearing in this case is denied. We are of the opinion that the bond given upon the proceedings for the opening of the road was sufficient, and not subject to the criticism made upon it by the appellant. That portion of the opinion to the effect that the proceedings could not be attacked collaterally for a substantial defect in the bond is withdrawn. *137