Southern Public Utility District v. Silva

McCOMB, J.

This cause was transferred to this court after decision by the District Court of Appeal, First Appellate District, Division One. Upon further examination of the record, we adopt the opinion of that court prepared by Mr. Justice Wood (Fred B.), with such omissions and additions as hereinafter appear, as and for the decision of this court. As modified, it reads:

In this proceeding in eminent domain judgment was rendered authorizing the plaintiff to acquire certain improvements and rights of way for its sewer system upon payment of

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$62,000 and interest to defendant Sehcrcr-Hobart Company. Neither party appealed.

Within 30 days from the date of the judgment, plaintiff filed an affidavit pursuant to section 1251 of the Code of Civil Procedure, declaring that to provide money necessary to pay the award, bonds of the district must be issued and sold. That, of course, extended to one year from the date of the judgment the period of time within which to pay the award.

Six months later (nearly seven months after the date of the judgment) plaintiff filed a notice declaring that it “hereby abandons the proceeding on file herein,” and moved for an order of abandonment and for judgment dismissing the proceeding. This motion was denied and plaintiff has appealed from the order of denial.

The order must be affirmed. The purported abandonment was without authority in law. It came too late. [The time for appeal, motion for a new trial, or a motion to vacate the judgment had passed.]

1

The applicable statute authorizes a plaintiff to “abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after

final judgment.”

(Code Civ. Proc., § 1255a.) [Italics added.]

[The term “final judgment” as used in section 1255a of the Code of Civil Procedure means a judgment when all possibility of direct attack thereon by way of (1) appeal, (2) motion for a new trial, or (3) motion to vacate the judgment, has been exhausted. (Code Civ. Proc., § 1264.7.) Any statements to the contrary in