74 Cal. 49 | Cal. | 1887
The plaintiff, a railroad corporation, on the seventeenth day of February, 1885, filed its complaint in the court below, asking a judgment condemning a right of way for its road through and over a lot of land belonging to defendants in the city of Eureka.
The judgment, after reciting the proceedings in the case, decrees that plaintiff is entitled to use and enjoy the strip of land described, in the complaint, as the right of way for the construction of its railroad, upon paying to defendants, or depositing in court for them, the full amount of compensation or damages assessed by the jury. Plaintiff then duly moved for a new trial, which was denied, and thereafter, on October 1, 1885, it appealed to this court “from so much of the judgment as •directed the payment to defendants of the damages assessed by the jury.” It gave a bond to stay execution during the pending of the appeal, in form as provided in •section 942 of the Code of Civil Procedure. On the 11th -of January, 1886, the appeal was dismissed by this court, "because the transcript was not filed in time.
After the appeal had been dismissed, viz., on January •30, 1886, plaintiff filed a petition in the court below, in which it was stated that “ since the trial of said action, plaintiff has determined to change its line where it passes through defendants’ land, as described in the complaint herein, and substitute a line farther north, which will not require of defendants’ land more than a narrow strip from the northeast corner of said lot, not exceeding ten feet in width, if any.” It also served defendants with notice that upon said petition, and upon other matters and proceedings, it would, on the fourth day of February, 1886, move the court “that the judgment entered in said action on the twenty-ninth day of August, 1885, be set aside and annulled.”
In Tripp v. Santa Rosa Street R. R. Co., 69 Cal. 631, the appeal was from an order refusing to set aside a former order dismissing the action as to certain defendants; and the court says: “ As to the order of dismissal, when entered, it was a final judgment, which was itself appealable. The appeal should have been prosecuted from such judgment. This court, as it is well settled, will not take jurisdiction of an order refusing to set aside a judgment or .order itself appealable.” And the court, in its opinion, refers to Henly v. Hastings, 3 Cal. 342; Holmes v. McCleary, 63 Cal. 497; and California Southern R. R. Co. v. Southern Pacific R. R. Co., 65 Cal. 295; all of which cases clearly sustain the rule. In the case at bar, therefore, as the judgment sought to be set aside by the motion was itself appealable, there is no appeal from the order denying the motion, and the appeal should be dismissed. Counsel for appellant contends that as his motion was based upon new matter occurring subsequently to the judgment, therefore the rule above stated does not apply. But as there is no statutory provision for the motion which he made, or for the proceeding which he sought to institute,'how can he invoke for his particular new matter any new rule that does not apply to any other kind of new matter?
Whether or not a railroad corporation, after having pushed a condemnation proceeding to the extreme of a
Appeal dismissed.
Paterson, J., Sharpstein, J., Temple, J., Searls, C. J., and McKinstry, J., concurred.