36 P. 176 | Ariz. | 1894
On the application of J. J. Fisher, this court issued a writ of certiorari directed to the district court, fourth judicial district, in and for Yavapai County, commanding the latter to certify up the proceedings had subsequent to judgment in the ease of Santa Fe, Prescott, and Phoenix Railway Company, plaintiff, v. J. J. Fisher, John Martin, J. W. Dougherty, R. M. Ling, and Levi Bashford, defendants. The record, as certified in return of the writ, shows that the plaintiff in the above-entitled ease brought suit in said court for the condemnation of a right of nay for its railroad across certain mining claims owned by the said defendants as tenants
It is provided in section 18 of the Eminent Domain Act (Rev. Stats, par. 1778) that “at any time after trial and judgment entered, or pending an appeal from the judgment of the supreme court, whenever the plaintiff shall have paid into court for the defendant the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceedings, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use, the district court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff if already in possession to continue therein, and if not, then to take possession of and use the property during and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant who is entitled to the money paid into court for him upon any judgment shall be entitled to demand and receive the same at any time thereafter, upon obtaining an order therefor from the court. It shall be the duty of the court, or a judge thereof, upon application being made by such defendant, to
Baker, C. J., and Rouse, J., concur.