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


Civ. 9181.

Decided: June 29, 1934

Ray L. Chesebro, Frederick von Schrader, and Arthur W. Nordstrom, all of Los Angeles, for appellant. Oliver O. Clark, Victor T. Watkins, and David Fulwider, all of Los Angeles, for respondents.

The city of Los Angeles instituted proceedings in eminent domain to acquire an easement over lands of numerous defendants, including those of the respondents in this proceeding, and final awards were allowed and paid for the lands so acquired from all of the other defendants. As to the former, an interlocutory decree was made and entered in which the sum of $78,223.33 was awarded as just compensation, following which the city obtained an order of the superior court to take possession of the respondent's properties, made the requisite deposits as provided by the Constitution, and entered into possession thereof. An appeal was taken by the city from the portion of said judgment which adjudicated the amounts of said awards; all proceedings with respect thereto were transferred to and are in the District Court of Appeal for review. The appellant now moves this court “to dismiss the above-entitled action only as to the defendants,” respondents herein, stating in its notice that it has abandoned the condemnation proceedings as to their said properties.

Appellants in their brief have well and properly simplified the issue by the assertion that section 1255a of the Code of Civil Procedure is the only statutory declaration upon the subject of abandonment, and that its provision that the plaintiff may abandon the proceedings at any time prior to “the expiration of thirty days after final judgment” is the only one here involved. That section, in so far as it is pertinent to the discussion, reads: “Plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendant and filing in court a written notice of such abandonment; and failure to comply with section 1251 of this code shall constitute an implied abandonment of the proceeding. Upon such abandonment, express or implied, on motion of defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees.” At this point it should be noted that by the words “before the expiration of thirty days after final judgment” is meant before the entry of said final judgment. McDaniels v. Dickey (Cal. Sup.) 25 P.(2d) 404; Vallejo & N. R. Co. v. Reed Orchard Co., 177 Cal. 249, 170 P. 426. It is apparent that the language which we are construing only purports to establish the period during which abandonment may take place, and that period is made to begin on the day of the entry of the final judgment, that is, the entry of the interlocutory decree. Final judgment as used in the Code sections on the subject in question means the interlocutory decree.

Counsel have cited many cases and quoted from several having to do with the right of the defendant to execution after entry of the final judgment, but in the main these authorities are not helpful. Some of them were decided before certain amendments to the State Constitution and to section 1255a of the Code of Civil Procedure. Two decisions in this class are Pool v. Butler, 141 Cal. 46, 74 P. 444, and Lincoln v. Wiswell, 8 Cal. App. 578, 97 P. 536. Both sides rely on Colusa, etc., R. R. Co. v. Superior Court, 31 Cal. App. 746, 161 P. 1011, and Mt. Shasta Power Corp. v. Dennis, 66 Cal. App. 186, 225 P. 877, 879. The first of these last-named cases determined that in an action in eminent domain to secure a railroad right of way the taking of an appeal by the plaintiff from the judgment in condemnation prior to the expiration of the thirty-day period after the interlocutory decree stays execution of the judgment pending the appeal, without giving a stay bond. A supersedeas was issued staying execution until the determination of the appeal. In arriving at its conclusion, the court also held that the “final judgment” referred to in section 1251 means the interlocutory decree, and that prior to the expiration of the thirty-day period after final judgment, within the meaning of section 942, Code of Civil Procedure, this decree amounts to no more than an order fixing the price at which the plaintiff may or may not take the property being condemned. The decision determines nothing about the right to abandon, at any time.

Mt. Shasta Power Corporation v. Dennis, supra, is also a case involving the right to an execution. The question of the right of the plaintiff to abandon was not in issue. The proceeding was one to condemn certain riparian rights. After interlocutory judgment had been entered and before thirty days had expired plaintiff appealed. It was held that such an appeal stays the issuance of the execution. Also it appears that the plaintiff voluntarily paid the amount of the award into court and had taken possession of the property sought to be condemned. It was held that these two acts constituted a waiver of the right of appeal. It is true that, in considering the arguments of the parties, we have the following statement in the opinion: “Appellant contends that its payment of the damages awarded the defendants was not voluntary, but that, under the provision of section 1251, herein quoted, it was compelled to make such payment within 30 days after final judgment, ‘as failure to comply with this provision would have subjected appellant to liability to execution, or to extra damages upon abandonment,’ as provided by sections 1252 and 1255a. An appeal by plaintiff, however, within 30 days after entry of the judgment would have operated to stay the issuance of execution under the provisions of the one section or the assessment of damages under the other. Colusa, etc., R. R. Co. v. Superior Court, 31 Cal. App. 746, 761, 161 P. 1011. Plaintiff had the option of paying the damages awarded and taking possession or appealing from the judgment and remaining out of possession until the final determination of the compensation to be paid.” Obviously what is said concerning the hypothetical effect of an appeal alone, without taking possession on damages upon abandonment, was outside of any issue involved. As to whether or not such an abandonment could have been made was not an issue, and any intimation of the court's opinion in that behalf was not a judicial commitment of the court. Neither of the decisions in Colusa, etc., R. R. Co. v. Superior Court or Mt. Shasta Power Corporation v. Dennis announces judicially any legal proposition having to do with any contention or argument in the instant proceeding. Whether or not the plaintiff has waived its right of appeal by having taken possession of the property sought to be condemned, as well as having paid the amount of award into court, decided in the last-mentioned decision, need not be discussed here.

The final judgment referred to in section 1255a, like that in section 1251 of the Code of Civil Procedure, means the interlocutory decree. It seems clear that the language in section 1255a, “plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment,” is intended to and does fix the beginning of a period during which abandonment may take place, as beginning with the entry of the interlocutory decree, and that this has no reference to or connection with the rights of the plaintiff on appeal. Decisions holding that an appeal stays execution have no bearing upon the plaintiff's right to abandon, nor with the time when such right begins or when it ends.

The language of the statute seems plain. It states that the plaintiff may abandon before the expiration of thirty days after final judgment. It is clearly the purpose of this provision to allow abandonment to be made within the period therein defined. That period terminates with the end of the thirtieth day “after final judgment.” What is final judgment? It is defined to be a judgment which terminates the litigation on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined. Gianelli v. Briscoe, 40 Cal. App. 532, 181 P. 105. “Our system of procedure contemplates that there shall be but one final judgment in a cause.” Doudell v. Shoo, 159 Cal. 448, 114 P. 579, 582. No doubt can exist that the interlocutory decree in a condemnation suit is the final judgment.

There can be no connection between this provision or section 1255a of the Code of Civil Procedure, which solely concerns the time within which plaintiff may abandon, and the ordinary steps of an appeal or the rights of the parties incident thereto, such as the defendant's right to execution. If the Legislature had intended that the period during which an abandonment might take place should be thirty days after the judgment had become final, it undoubtedly would have used these or similar words. We must assume that the lawmaking mind knew the meaning of all words and phrases, legal and common, and especially those as elementary as “after,” “final judgment,” and “after the judgment has become final.” In a contract, one year after the 24th day of June would be the following 24th day of June. Vorwerk v. Nolte, 3 Cal. Unrep. Cas. 285, 24 P. 840. “After the time” of transfer, relating to an action to set the transfer aside, began to run the moment the transfer was made, meaning “from the time.” Kelley v. Bell, 172 Ind. 590, 88 N. E. 58. “Five days after the completion of the final canvass” means five days “after the declaration of the result.” Miller v. Superior Court, 25 Cal. App. 607, 144 P. 978, 979. Examples might be added without number of the construction of the same language or similar to that herein involved, all to the same import. None would appear necessary.

It is urged that, if the period in which abandonment is allowed be limited to thirty days after the entry of the interlocutory decree, there would exist a hiatus during which the right of abandonment no longer exists but also during which the property owner cannot enforce rights which the condemnor can no longer take away. Just what is meant by this statement is not quite clear. If the plaintiff after the thirty-day period can no longer abandon the proceeding, it is in no different status than any other suit on appeal, and, of course, neither the owner nor the condemnor can take any action affecting the title of the property being condemned or the payment of compensation until the appeal is determined. There is nothing anomalous or incongruous in such a situation.

Again, petitioner sees other dire results if the court does not construe the language in question as urged by it. It is said that “if the thirty day provisions of sections 1251 and 1255a, Code of Civil Procedure, are not given the construction herein urged, there is no right of appeal ever left in a condemnor in a condemnation action, though the judgment may be unconscionable, the trial a travesty of error and the result ruinous to the public.” Of course, the right of appeal would not be wiped out if there were no right to abandon after entry of final judgment or if the plaintiff through neglect or otherwise allowed the time in which he might abandon to expire. The appeal would still go on, utterly unaffected by the death of the right to abandon. If the right to appeal from the final judgment in condemnation be lost, in any case it would not be attributable to the expiration of the right to abandon. However, if, well knowing the consequences, the condemnor takes possession of the property sought to be taken and pays the money into court, then, not by reason of there being no right to abandon, but as the result of the taking of possession of the property too soon for the plaintiff's safety, he might lose his right of appeal. But as was said in the Mount Shasta Case: “The fact that a party may find it more profitable to comply with a judgment and accept the fruits thereof than to suffer the losses incident to an appeal cannot be said to render such compliance compulsory. The necessities of the plaintiff and its intention in making payment and taking possession, however, are not decisive of the case. In taking possession, the plaintiff was exercising a statutory right, and the effect of its acts must be measured by the provisions of the statute.”

The doctrine of the greatest good to the greatest number has not been carried so far with judicial approval as to induce courts to ignore the intention of the Legislature as expressed in a statute. Nor are we aware of any binding authority which would require us to give such public interest consideration where it would result in an obviously harsh and harmful invasion of the inherent as well as constitutional rights of an individual. In that behalf it must be remembered that this is a proceeding by which the property of an individual is being taken against his consent, that any provision allowing the plaintiff in such a proceeding taking possession of the individual's property before actual payment is stretching the doctrine of the priority of public welfare to its farthest limit of flexibility, and that in doing so an unequal burden is placed upon the individual which may easily result in practice in an award made in the trial court being the end of the litigation though the judgment may be unconscionable and the trial replete with error, because the individual often does not have the financial ability to prosecute an appeal or to maintain himself while such an appeal is being prosecuted, he having already lost possession of his property. Therefore it is not unreasonable, when viewed from a disinterested standpoint, to believe that the Legislature meant what it has quite plainly said when it provided that the right to abandon must be “before the expiration of thirty days after final judgment.” In view of the foregoing, we find no merit in other points urged by appellant.

The motion to dismiss is denied.

CRAIG, Justice.

We concur: STEPHENS, P. J.; ARCHBALD, Justice pro tem.

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