City of Los Angeles v. Superior Court

LANGDON, J.

This is a petition for a writ of mandate. Plaintiff City of Los Angeles commenced proceedings in condemnation of land owned by Frances A. Wright by filing its complaint March 16, 1926. Subsequently on March 20, 1928, the court found the value of the property as of June 21, 1927, in the sum of $18,153, and entered its interlocutory judgment. On March 8, 1928, prior to the entry of the judgment, assessments for certain street improvements became liens on the property. They were not due at that time, and the city withheld from the amount fixed by the judgment the sum necessary to pay them, and tendered the balance to the owner of the property. She

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refused to execute a full satisfaction of judgment, and the lower court denied plaintiff’s motion for entry of final judgment on such terms. Plaintiff then made this application for a writ of mandate to compel the entry of the judgment.

Petitioner’s right is established by section 1248, subdivision 8, of the Code of Civil Procedure, which provides: “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.’’ The statutory declaration seems entirely clear. The defendant property owner, however, urges that the

ejusdem generis

rule should apply, and that the words “mortgage or other lien” should be construed as “mortgage or similar lien”, or “mortgage and lien of like nature”. So construed, it is contended, the statute will be restricted in its application to liens created by the property owner, and will not include a street assessment lien created by law.

The rule of construction relied upon is of course not positive or mandatory, but is simply an aid to the ascertainment of the legislative intention. Usually it finds its application in a case where several classes of persons or things are enumerated, and then the provision for “other” things or persons follows; and not where, as here, but one class is first enumerated. (See