38 Wash. 184 | Wash. | 1905
This action was originally commenced in the superior court of Clallam county, by appellant as petitioner, for the purpose of condemning a right of way for appellant’s use over certain real estate belonging to respondents. Hpon trial without a jury, the court ascertained the separate damages sustained by the several respondents, and entered judgment for said damages as follows: (1) In favor of the Port Angeles Land and Trust Company and the Port Angeles Townsite Improvement Company, for $50; (2) in favor of the Pilion Mill and Lumber Company, in the sum of $256, for land and timber sought to be appropriated; (3) in favor of the Pilion Mill and Lumber Company, in the further sum of $1,200 for damages resulting from its inability to cross said right of way at grade. The petitioner appealed only from that portion of said judgment awarding the item of $1,200 damages to the Pilion Mill and Lumber Company. A bond was given upon said appeal in accordance with the
Appellant and the Fidelity and Deposit Company of Maryland, the surety on the appeal bond, by motion, have asked this court to recall the remittitur, and modify said final judgment in the following respects:
First, by striking' therefrom the words, “That the said Port Angeles Land and Trust Company, and the Port Angeles Townsite Improvement Company, have and recover of the said appellant and from the Fidelity and Deposit Company of Maryland, surety, the sum of $50, with interest from Aug. 12, 1903;” second, by striking therefrom the words, “That the Filion Mill and Lumber Company recover of said appellant and said surety the sum of $256, and the further sum of $1,200 with interest from Aug. 12, 1903;” third, by changing the portion of said judgment, reading as follows, “and that said respondents recover the costs of this action taxed and allowed at $32.40,” so that the same shall read, “and that respondent Filion Mill and Lumber Company recover costs of this action taxed at $32.40.”
“An objection to this motion is made by tbe appellant to tbe effect that this court has lost jurisdiction of tbe cause and of tbe judgment by reason of the remittitur having been transmitted to, and filed in, tbe superior court. We think this objection is untenable. Tbe appellate court has inherent power to correct its judgment during tbe terms in which tbe judgment was entered. Tbe respondent, under our practice, has no notice of what tbe judgment is until it is remitted. Tbe presumption must be that tbe judgment is entered in accordance with the opinion of tbe court, and it would be a bard and unjust rule to announce that, if by inadvertence or mistake tbe judgment should be entered not in conformity with tbe opinion, tbe respondent would bave no- redress. We think that in all jurisdictions, under a practice similar to- ours, tbe court has power to recall tbe remittitur and enforce tbe judgment according to tbe opinion rendered in tbe case.”
Tbe motion to recall tbe remittitur and modify tbe judgment has been made with due diligence.
Tbe judgment entered by tbe trial court from which tbe appeal was taken was not tbe ordinary judgment for recovery of money, as in a suit upon a money demand. After an adjudication of tbe necessity of appropriation provided for by Bal. Code, §5640, two further judgments are required in condemnation proceedings, under our eminent domain act, tbe first to be entered upon tbe verdict of tbe jury, or tbe findings of tbe court assessing tbe
“The weight of authority undoubtedly is that, in the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that, even after confirmation or judgment, the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded.”
This appeal is taken under the special provisions of 3 Bal. Code, § 5645 ; Laws 1901, p. 213. Said section provides that on an appeal being taken, “. . . in case a corporation appropriating such land, real estate, premises or other property is appellant, it shall give a bond like that prescribed in the next following section, to be executed, filed and approved in the same manner . . .” The next following section, 2 Bal. Code, § 5646, reads as follows :
“The construction of any railway surface tramway, elevated cable tramway, or canal, or the prosecution of any works or improvements by any corporation as aforesaid shall not be hindered, delayed or prevented by the prosecution of the appeal of any party to the proceedings: Provided, The corporation aforesaid shall execute and file with the clerk of the court in which the appeal is pending a bond to be approved by said clerk, with sufficient sureties, conditioned that the persons executing the same shall pay whatever amount may be required by the judgment of the court therein, and abide any rule or order of the court in relation to the matter in controversy.”
It is contended by respondents that appellant must be held to have given the bond provided for by §5646, for the
The motion of appellant will be granted, the remittitur will be recalled, and the order and judgment of this court will be so modified as to'direct a judgment to be entered by the superior court, against appellant, and the surety upon the appeal bond, for the costs taxed in this court, said judgment to run in favor of the Eilion Mill and Lumber Company only.