McPHERSON v. CITY OF LOS ANGELES (1936)

Petitioners secured a judgment that a peremptory writ of mandate should issue compelling the defendants, appellants now, to pay interest upon a judgment in a condemnation action. Because we are of the opinion that it is the established law of this state that the question thus presented may not be determined in a mandamus proceeding, we find it necessary to reverse the judgment.

In the condemnation action, tried in Tuolumne county, a judgment was entered decreeing that $85,000 was to be paid for one parcel sought, $35,000 for another. The city, feeling aggrieved by the judgment, appealed, but unsuccessfully, the judgment being affirmed over a year later. The principal sums, thus finally adjudicated as the amounts to be paid, appellants have paid. The defendants in the condemnation action accepted the payments of the principal sums under an agreement that their claim to interest on the judgment was not thereby waived. Their demands for the interest meeting with refusal, they brought this proceeding to secure it by court mandate.

We base our statement that the question thus presented may not be answered in a mandamus proceeding on the case of Howe v. Southrey (1904) 144 Cal. 767, 78 P. 259. The appellant–plaintiff in that proceeding had secured a judgment against the defendant school district for $55, together with costs in the sum of $134.50. The school district was willing to pay the principal sum of the judgment but refused to pay the costs. A writ of mandate was sought to compel the issuance of the proper requisition for the full amount of the judgment, including the costs, and also for the interest which had accrued on the judgment. Our Supreme Court held that the writ should issue for the $55 and the costs, but with respect to the interest stated (page 769 of 144 Cal., 78 P. 259): “As to the matter of interest, it does not appear from the petition herein that any interest was provided for in the judgment entered in the original suit. Mandamus does not lie to enforce the obligation of contracts, but only to enforce the performance of an act which the law specially enjoins. In this case it can go no farther than to compel the board to issue its requisition for the exact amount of the judgment. It cannot determine whether the obligation rests upon the district to pay interest upon the judgment, for such is not the office of the writ of mandate. Barber v. Mulford, 117 Cal. 356, 49 P. 206.”

The language just quoted was quoted and relied upon in Sheehan v. Board of Police Commissioners (1922) 188 Cal. 525, 534, 206 P. 70. We are therefore forced to hold that the right of petitioners to secure interest on the principal sum adjudged to be due them, the payments of which were deferred by the appeal, may not be decided in this mandate proceeding.

The judgment is reversed.

BISHOP, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.