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District Court of Appeal, Second District, Division 2, California.


Civ. 9623.

Decided: May 15, 1934

Ray L. Chesebro, F. Von Schrader, and Walter L. Bruington, all of Los Angeles, for petitioner. J. Wiseman Macdonald, of Los Angeles, for respondent.

The city of Los Angeles filed its complaint in condemnation March 16, 1926. Subsequent proceedings resulted in the court filing its decision on March 20, 1928, in which it determined the value of the parcel involved herein and belonging to one Frances A. Wright. Thereafter the interlocutory decree fixed said value as $18,153. Assessments for certain street improvements not arising from such condemnation became liens on said parcel on the 8th day of March, 1928. It is conceded that they were not liens at the date of the filing of the referees' report in the condemnation proceedings or of the exceptions thereto; they were not due at the time of the entry of judgment, nor was any provision made for their payment in the interlocutory judgment. After such judgment was signed and filed the city paid the street improvement bonds which were then liens upon the parcel but not yet due.

The sole question presented is as to the right of the city to take up and remove the liens of the street bonds and to deduct from the award the amount necessarily expended in paying such bonds. This question is directly presented by reason of said Frances A. Wright having declined to execute a full satisfaction of the judgment upon payment of the difference between the award in her favor and the balance remaining after the deduction of the amounts thus paid by appellant, and appellant having moved for entry of a final judgment upon payment into court of the award less said deduction, which motion was denied. This petition is for a writ of mandate directing that respondent court enter final judgment.

We find no authority to support the city's position, unless it be subdivision 8 of section 1248, Code of Civil Procedure. It reads as follows: “When the property sought to be taken is encumbered by a mortgage or other lien, and the indebtedness secured thereby is not due at the time of the entry of the judgment, the amount of such indebtedness may be, at the option of the plaintiff, deducted from the judgment, and the lien of the mortgage or other lien shall be continued until such indebtedness is paid.” It seems clear that the rule ejusdem generis, elementary in statutory construction, applies here. That familiar canon is well stated in Pasadena University v. Los Angeles County, 190 Cal. 786, 214 P. 868, 869, as follows: “It is the rule of construction that, where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. 36 Cyc. 1119; 25 R. C. L. 996, 997; 2 Lewis' Sutherland, Stat. Constr. 803, 804.” Where an enumeration of several classes of persons or things is immediately followed by a clause including “other” persons or things, the word “other” is, unless the intent of the Legislature is shown by other parts of the law to be otherwise, read as “others of like nature.” 23 Cal. Jur. § 130; 25 R. C. L. § 240.

But it is argued that Marin, etc., Water District v. North Coast Water Company, 40 Cal. App. 260, 180 P. 620, has construed this particular subdivision of section 1248, Code of Civil Procedure, and conclusively determined the question here presented. What is there said on the point which we are now considering was not necessary to the decision of that case. The question there to be determined was whether or not, when the condemnor had paid a lien similar to the one here involved, it could recover the amount of the payment from the person whose land had been condemned. Clearly, any statement to the effect that the provisions of subdivision 8 of section 1248 give to the party taking property by eminent domain the right to retain from the sum of money to be paid for such property the amount necessary to discharge “any lien” existing thereon was obiter dictum. Such pronouncement leaves the wording of the section exactly as it was and gives us no substantial aid. We have neither been furnished with nor have we found any case not distinguishable in principle from the instant one, where the rule ejusdem generis has not been applied.

In view of this construction of the Code section involved, other points argued in the briefs need not be commented on here. We conclude that the lien of the assessments attaching to the property condemned after the entering of the interlocutory decree is not embraced within the class of lien which the condemnor may pay and deduct from the amount of the award.

The writ is discharged.

CRAIG, Justice.

We concur: STEPHENS, P. J.; DESMOND, J.

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