City of Downey v. Johnson

Opinion

HUPP, J.

*

In this eminent domain proceeding, defendant appeals from a

1

for $9,935 entered against him and in favor of plaintiff following the granting of plaintiff’s motion for reimbursement pursuant to former Code of Civil Procedure section 1254, subdivision (g).

2

We affirm the judgment.

In 1964, plaintiff commenced an action in eminent domain to acquire land for the construction of a municipal hospital. Among the land sought

[973]

to be acquired were parcels 40, 41 and 42 owned by Ella Dotsey. Dotsey, through defendant, the conservator of Dotsey’s estate, in propria persona, purportedly answered the second amended complaint. On December 31, 1965, an interlocutory judgment in condemnation was entered awarding compensation of $59,900 for parcels 40, 41 and 42, and ordering that the parcels be condemned upon payment of such sum by plaintiff for the benefit of defendant.

3

On January 6, 1966, defendant filed a notice of appeal from the judgment. Plaintiff paid the amount of the judgment into court and, on January 19, 1966, obtained an order of the court authorizing possession of parcels 40, 41 and 42. (Former Code Civ. Proc., § 1254, subd. (a).) In April 1968 and August 1970, defendant filed applications for payment under the judgment, at the same time abandoning all defenses except a claim for greater compensation. (Former Code Civ. Proc., § 1254, subd. (i).) Pursuant to these applications, warrants totaling $59,900 were issued to defendant and were cashed by him. In July 1968, the judgment was reversed on the ground that defendant, in his representative capacity as conservator or executor, did not have the right to appear in propria persona.

(City of Downey

v.

Johnson

(1968) 263 Cal.App.2d 775 [69 Cal.Rptr. 830].) A second trial resulted in a verdict fixing the combined fair market value of parcels 40, 41 and 42 at $49,965. Defendant appealed from the ensuing judgment, which was affirmed. Thereafter, plaintiff filed a motion for reimbursement to recover from defendant the sum of $9,935, representing the amount withdrawn by him in excess of the final award in condemnation for parcels 40, 41 and 42. (Former Code Civ. Proc., § 1254, subd. (g), now § 1268.160.) The motion was granted and judgment in the sum of $9,935 was entered in favor of plaintiff and against defendant.