TOM v. EDDY

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District Court of Appeal, Second District, Division 1, California.

TOM v. EDDY.*

Civ. 7872.

Decided: February 21, 1934

Fred N. Arnoldy, of Los Angeles, for appellant.

The question presented by this appeal is the following question of law: When during the pendency of an action to condemn real property under the Street Opening Act of 1903 (St. 1903, p. 376, as amended), title to the property is transferred by grant from the defendant A to another person B, but the condemnation action proceeds to judgment in the name of A as defendant; and after the entry of the interlocutory judgment, but before the compensation has been paid by the condemnor and before any final decree, the property is granted by B to C; and in the several deeds of transfer no provision is made concerning the ownership of the money to be paid by the condemnor, and no contract is made relating thereto; and thereafter defendant A assigns to D his claim of right to receive the said money––as between the grantee C and the assignee D, which of these two is entitled to receive the award?

In this action the facts are in substance those assumed in the above–stated question. In addition, it appears that the plaintiff, Alfred P. Tom, to whom the property was conveyed, gave notice to the condemnor, of his claim to the award, before the claims of the defendants in the condemnation action, to said award, had been assigned to defendant Eddy, and before the money had been paid to him. The plaintiff had no knowledge that said money was being paid to Eddy, until that payment had been made. Upon proof of these facts, in this action of the plaintiff Tom to recover said money from Eddy, the defendant Eddy moved for a nonsuit upon the ground that plaintiff was not the owner of the parcels condemned at the time the right to compensation for the taking thereof accrued, and particularly upon the ground that under the provisions of section 10 of the Street Opening Act of 1903 (St. 1903, p. 379, as amended), the right to such compensation accrues at the date of the order appointing referees or of the order setting the condemnation suit for trial. The motion was granted, and judgment of nonsuit entered. From this judgment the plaintiff appeals.

By a recent decision, Security Co. v. Rice, 215 Cal. 263, 9 P.(2d) 817, 82 A. L. R. 1059, the Supreme Court decided the question at issue here, and that decision upholds the contention of appellant that the money belongs to him. Further, we are of the opinion that the provisions of section 10 of the said Street Opening Act of 1903 (St. 1925, p. 242) were intended only to regulate matters of procedure, including a rule which fixes the time with reference to which the question of value shall be determined, in an action of condemnation under the authority of that law. As was said in City of Los Angeles v. Oliver, 102 Cal. App. 299, 311, 283 P. 298, 303: “That the fixing of some particular date as of which values shall be ascertained is a matter of procedure would seem self–evident.” It is wholly independent and apart from the merits of a controversy concerning the substantive right of ownership of the fund created by the award.

The judgment is reversed.

CONREY, Presiding Justice.

We concur: HOUSER, J.; YORK, J.