128 P. 9 | Cal. Ct. App. | 1912
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *650 This is an application for a writ of supersedeas to prevent the Vallejo and Northern Railroad Company from taking possession of certain real estate during the pendency of an appeal from a judgment of condemnation. The petition for the writ alleges that the Reed Orchard Company has been and now is the owner in fee of a certain tract of land containing one hundred and forty acres, more or less, in Yolo county, known as the Reed Orchard; that petitioner, the People's Savings Bank, has been and now is the holder of a deed of trust covering the whole of said property and securing over $35,000 due from the said Reed Orchard Company to said bank, the said deed of trust being of record in the county recorder's office of said Yolo county; that petitioner Komano has a lease of said premises for the term of five years beginning November 1, 1907, and that he has paid the rental to date, including $3,750 due January 1, 1912 (being one-half of the rental for the year ending November 1, 1912), but that the $3,750 due July 1, 1912, has not been paid; that on the fifth day of May, 1910, the Vallejo *651 and Northern Railroad Company began an action in the superior court of said Yolo county against petitioners to condemn, for railroad purposes, one hundred and four and one-tenth acres of said tract of land; that the summons in said action was served on the defendants named therein, petitioners herein; that said Reed Orchard Company appeared in said action and answered said complaint; that People's Savings Bank and said Komano did not appear in the action, but that evidence was received at the trial, without objection, "showing that the deed of trust to said People's Savings Bank was in full force and effect, and the said lease so owned and held by S. Komano was offered and received without objection and also testimony showing the net value of the crops grown on said premises and to which said tenant S. Komano would be entitled under said lease, and other evidence was received tending to show the value of his interest and the jury viewed the premises"; that a jury trial was had and a verdict was rendered on the twenty-second day of March, 1912, in favor of plaintiff, awarding to it the one hundred and four and one-tenth acres sought to be condemned, and fixing the value thereof at the sum of $104,100, but that said verdict did not separately assess or fix the value separately of the several estates and interests of the defendants; that on March 23, 1912, the superior court entered judgment on said verdict awarding the plaintiff the said one hundred and four and one-tenth acres, but said court did not, by said judgment or at all, fix, determine, or ascertain the interests or estates or value of the interests or estates of the various defendants in said action, or in any manner designate or show the value of each estate or interest therein separately; that within the time required by law, petitioners herein appealed from said judgment; "that the said Vallejo and Northern Railroad Company deposited in court the amount of the verdict, together with the costs for the defendants generally to be distributed to those entitled thereto, without naming the persons to whom the same was to be paid nor the respective amounts to be paid to any person or defendant in said action; that a final order of condemnation was entered by said court from which petitioners have appealed; that a notice has been served on petitioners by said railroad company that it would move said court to enter an order putting said company into possession *652 of said property and authorizing it to use the property during the pendency and until final conclusion of the litigation; and that said superior court and the judge thereof threaten to and will proceed to hear said motion and grant the same." A demurrer, on the general ground, has been filed herein by respondent and also an answer and return in which some of the allegations of the petition are denied, and the proceedings in the condemnation suit are more fully set forth than by petitioners. At the hearing it was also stipulated that this court might consider the fact that the lower court "made and entered its order fixing the sum of $25,000 as a further sum for a fund to pay any further damages and costs that might be recovered in said proceeding, as well as all damages that might be sustained by defendants, if for any cause the property shall not be finally taken for public use, and that then and thereafter the Vallejo and Northern Railroad Company deposited with the clerk of the said superior court of the county of Yolo the said further sum of $25,000, which said sum is still in the custody of said clerk."
For the two following reasons it is urged that the court should issue the writ: 1. By reason of said appeals the enforcement of the judgment in said condemnation proceeding has been stayed, and therefore the superior court has no authority to authorize the plaintiff in said action to take possession of or use said property until after the final determination of said appeals; and 2. In consequence of the failure of the jury and of the court to fix the value of the respective interests of the defendants in said action in and to the property condemned, none of petitioners can determine or demand from the clerk the amount of his respective interest. The duty of the jury to segregate the damages and to make the respective awards as contended for is claimed to be imposed by section 1254 of the Code of Civil Procedure, and by reason of said omission it is urged that there is really no valid judgment to be executed.
It is virtually conceded that the writ ofsupersedeas will issue to prevent action on a judgment only where the appeal from the judgment operates as a stay of proceedings. Or, as it has been stated: "Where the appeal acts as a supersedeas, the appellate court will issue a writ ofsupersedeas or stay of proceedings when the trial court is about to issue an execution *653
or other order with the intention of carrying the judgment into effect." (Dulin v. Pacific W. C. Co.,
The first question to be determined, then, is whether the appeal taken by petitioners operated to stay proceedings upon the judgment of condemnation; and this is to be considered in the light of the principle that no stay of execution is effected by an appeal unless by virtue of some statutory provision. In the Foster case, supra, it is said: "The effect of an appeal from the judgment, upon the judgment appealed from, is a matter of statutory regulation, and as this effect is to be determined by a construction of the statutes under which an appeal is taken, the decisions in other states upon statutes differing from our own are not entitled to a controlling consideration." Under the facts admitted herein it is perfectly clear that certain provisions of the statute authorize the court below to make an order to permit plaintiff, the said railroad company, to take possession of and use the said property during the pendency of the litigation. Section 1254 of the Code of Civil Procedure provides that "At any time after trial and judgment entered or pending an appeal from the judgment to 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 proceeding, 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 superior 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 the pendency of and until the final conclusion of the litigation, and may if necessary stay all actions and proceedings against the plaintiff on account thereof." Section 1257, following, is another special provision in reference to condemnation proceedings, and it makes applicable to said proceedings the general provisions of part 2 of the Code of Civil Procedure, relative to new trials and appeals, except as they are inconsistent with the provisions of *654
the title under which are found said sections 1254 and 1257. From the statement of facts already made it appears that a trial has been had, a judgment entered, an appeal has been taken, the plaintiff has paid into court for the defendants the full amount of the judgment and costs, together with the other sum demanded by said section 1254, and the statutory notice has been given for the hearing of the motion for an order to be let into possession of the property. There has been, therefore, a full compliance, on the part of plaintiff, with the requirement of said section 1254, and unless there is some reason for holding said section invalid or that it has been repealed, petitioners' case as to the effect of the appeals, it would seem, must fail. The validity of the section, it may be said, has been directly adjudicated, and it cannot now be questioned. In San Luis Obispo v. Simas,
In Spring Valley W. W. v. Drinkhouse,
The other consideration to be noticed in this connection grows out of the contention of petitioners that this section has been repealed by implication by virtue of the amendment of section 949 by the legislature of 1905, [Stats. 1905, p. 22]. To state the proposition in the language of petitioners: "Section 949, Code of Civil Procedure, therefore, being general in terms and upon its face providing for a stay of proceedings in all cases not expressly exempt from its operation, and said section being the latest expression of the will of the legislature, should control section 1254, Code of Civil Procedure. Section 949 expressly specifies cases where the appeal does not stay execution. In 1905, as stated, the legislature enacted this section, but did not include among the exceptions therein specified condemnation proceedings. It is well settled that a revised or amended act must be construed as a new and original piece of legislation. (Donlan v. Jewett,
We do not understand that the cases cited by petitioners are necessarily inconsistent with this position.
In Estate of McGee,
In Kennedy v. Board of Education,
The case of City of Los Angeles v. Pomeroy,
As to the contention of petitioners in reference to the segregation of the amount found due the defendants, we think several answers may be made, as suggested by respondent.
In the first place, plaintiff is required by the statute to deposit the amount of the judgment, whatever that may be. Plaintiff is not commanded to make any division of the fund among claimants or to specify how much is deposited for any particular claimant. Nor is it material that the judgment may be informal or erroneous, as this is a consideration for appeal or motion for a new trial. It is manifest that the asserted infirmity as to the verdict is not a jurisdictional defect which invalidates the judgment, but at most an irregularity to be reviewed in the proper proceeding. If from the record the judgment appeared to be void, a different question, of course, would be presented, but that is not the incident case. *660
If there was any failure by the jury to find upon the interest of any particular defendant, and this was error, it can be reviewed hereafter on appeal. The right of the plaintiff to obtain possession of the property is not made dependent upon the impeccability of the verdict. It is well settled that the regularity of the proceedings of the court, if within its jurisdiction, cannot be reviewed on prohibition. (BeaulieuVineyard v. Superior Court,
Again, since it appears from the petition herein that the Reed Orchard Company was the owner of the condemned property and the value of said property was found by the jury, the presumption would be, in the absence of a contrary showing, that this was the value of the owner's interest, and that the interest of the other defendants was of nominal or of no value. In this connection it is to be observed that the petition herein does not negative this presumption, since there is no allegation that the interest of either of the other defendants was of any value at the time the verdict was rendered. The situation here is analogous to that of Scheerer v. Hutton,
It would also seem clear that the defendants had the burden of alleging and proving their interests and the value thereof, and that only the defendant meeting that burden should be permitted in this proceeding to question the disposition of the fund. The People's Savings Bank and Komano having been regularly served with summons, and having failed to appear and urge any claim to whatever fund might be awarded, should not be indulged now to stay this public improvement on the ground that the jury did not find the value of an interest which was not alleged to have any value and did not award these defendants money which in the lower court they declined to claim. If the owner of a mortgage or of a leasehold interest can lie by in this way until after judgment and successfully interpose such an objection, it is manifest that fraud is likely to be encouraged thereby at the expense of the public welfare.
In the case of Yellowstone Park R. R. Co. v. Badger Coal Co.,
In the Morenhout case, supra, referring to the effect of a default, it is said: "To say that the judgment is not conclusive upon them because they neglected to appear and exhibit their interests is preposterous. Such a doctrine would place it in the power of an obstinate tenant to defeat and prevent a partition in all cases by merely staying out of court. They were made parties and had an opportunity to appear and take part in the proceedings. Their default was a confession that they had no interest in the land, and the court had jurisdiction to so adjudge expressly. But had it not done so, and passed them in silence, the result would have been the same, for a judgment that the land belonged to the parties between whom it was divided would have been equally as conclusive against their title, they having been made parties and served with process."
Since there is no allegation to the contrary in the petition, we may assume, also, that no objection was made to the form of verdict rendered by the jury. It is true that the jury are *663 directed by the statute (Code Civ. Proc., sec. 1248) to "ascertain and assess the value of the property sought to be condemned and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein." But in a case where there are such separate interests of value and the jury returns a verdict informal in this respect, it is manifestly the duty of the aggrieved party to point out the defect that it may be corrected. If he fail to do so, it is only just that he should thereafter be precluded from complaining. Of course, the general principle is universally recognized as stated by Hayne on New Trial and Appeal, page 1555, as follows: "So that no principle or rule of appellate practice is more strongly entrenched, both by reason and by precedent, than that which requires objections or errors to be first brought to the attention of the trial court before the appellate court is asked to review them."
Section
In the Davidson case, supra, decided by the supreme court of Idaho, it seems that a reversal was sought because separate awards had not been made for several tracts of land, section 5220 of the Revised Codes of that state being the same as said section 1248 of the California Code of Civil Procedure. After stating that it appeared that the several tracts were necessary for the intended use and that it would be presumed evidence *664 was received of the value of each parcel, it was declared that, in the absence of the instructions, "it will be presumed that the court correctly instructed the jury, and told them that in determining the question of value, they should separately assess and determine each different parcel. In returning the verdict, however, the jury seems to have found the aggregate value of the several parcels or tracts of land, and to have included therein the value assessed by them upon each separate parcel. This, of course, is not in accordance with the requirements of the statute, and it would have been better and more in conformity with the statute to have found separately the value of each separate parcel and the aggregate value of the damages for the several parcels. When said verdict was returned the appellant made no objections to the form of the verdict, or in any way called the trial court's attention to the fact that the verdict was not in conformity with the form required by the statute, and the insufficiency of the verdict was in no way called to the attention of the trial court. . . . We think, under the authorities and the decisions of this court that appellant waived any objections to the form of the verdict and cannot present the matter for the first time in this court."
In the Johnson case, supra, the supreme court of this state said: "If the defendant was dissatisfied with the form of the verdict, he should have asked at the time it was announced that it be made formal and certain; otherwise it was the duty of the court to construe it so as to give it the effect intended by the jury, if the intended effect could be ascertained from its language, considered in connection with the pleadings and evidence; provided, however, that the intended effect was not unlawful and not irrelevant to the pleadings. (Truebody v.Jacobson,
It may be added that, upon the assumption that the defaulting defendants had some interest in the property that was and is of substantial value, it is a fair inference that its adjustment *665 is a matter of mere computation, and that the apportionment among the claimants of the entire fund, which represents the full value of the property, will give rise to no unfriendly or troublesome disputation. If there should be any serious controversy as to the extent of these interests, there is ample authority for the settlement of it by the court. In connection with said section 1248 of the Code of Civil Procedure must be read section 1247, which provides that "The court shall have power . . . 2. To hear and determine all adverse or conflicting claims to the property sought to be condemned and to the damages therefor."
Again, as before seen, since there is no allegation that the lease is still in force, we may assume, as alleged in the answer of respondent, that by its terms it ceased to be operative on condemnation of the land, and it may for that reason be ignored as of no value. As for the deed of trust or mortgage, it may be inferred that the residue of the one hundred and forty acre tract is abundant security for the payment of whatever may be due the mortgagee. At any rate, under a long line of authorities, if there should be any necessity for it, the mortgagee may resort to the fund in the custody of the court to satisfy any deficiency.
In the Matter of Morris Avenue,
The foregoing considerations, in the main, probably would be more apposite to a motion for a new trial or an appeal from the order denying it or from the judgment, but it is conceived that they are also of importance in the determination of the character of the judgment, a question necessarily involved in the application before us.
Petitioners attach much importance to the case of ButteCounty v. Boydston,
Some other points are discussed by counsel, but it is believed that sufficient consideration has been devoted to the subject, and that no reasonable doubt exists that under the law respondent can be justified in taking the contemplated action. The demurrer is therefore sustained and the order to show cause discharged.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 6, 1912, and the following opinion then rendered thereon: *667
THE COURT. — The petition that the application in the above-entitled matter for a supersedeas, originally heard and determined in the court of appeals, be given a hearing in this court is denied. This denial, however, is not to be construed as an affirmance of the views expressed by the court of appeals as to the scope of the writ of supersedeas and the circumstances under which such a writ will be issued. The power to issue such a writ is one of the inherent powers of a court of appeals, to be exercised in any proper case when it appears necessary so to do to preserve the rights of a litigant until final determination of his appeal. (Rogers v. Superior Court,
Chief Justice Beatty and Justice Sloss, deeming themselves disqualified, do not participate in the foregoing.