City of Santa Barbara v. Superior Court

PRAMPTON, J. pro tem.

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Prohibition to restrain the respondent court from proceeding with a new trial after order granting a motion for a new trial.

Petitioner is the plaintiff in an action in eminent domain commenced in the respondent court designated as number 71624 and entitled “City of Santa Barbara, a municipal corporation, Plaintiff, vs. Crocker-Citizens National Bank, a national banking association, as successor trustee under the Will of Antonio J. Orella, Deceased, et al, Defendants. '' The purpose of the action was to acquire a parcel of real property to be used by the plaintiff City of Santa Barbara for parking purposes.

The action went to trial before a jury on the issue of damages for the taking of the real property involved and on July 30, 1965, the jury returned its verdict in the sum of $126,480 as damages for the parcel taken and found that there was no severance damage.

On September 28, 1965, Crocker-Citizens National Bank, the real party in interest, being dissatisfied with the amount of the award, served and filed its notice of motion of intention to move for a new trial. On October 15, 1965, the motion for a new trial was heard and submitted. On November 9, 1965, the trial judge signed and filed his findings, conclusions and judgment. On November 16,1965, notice of entry of judgment was served on Crocker-Citizens National Bank. On December

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21, 1965, Crocker-Citizens National Bank filed its notice of appeal in which it stated in part that it “. . . hereby appeals from that certain judgment entered on or about November 9, 1965, motion for a new trial having been denied by operation of law on November 27, 1965.” On January 4, 1966, the trial judge granted the motion for a new trial.

From the foregoing summary it is apparent that the notice of motion for new trial was filed and the motion was heard prior to the time that the decision of the court was rendered and the notice of motion was therefore prematurely filed. It is settled that the judgment entered herein on November 9, 1965, while sometimes referred to as an interlocutory judgment, is the final judgment from which an appeal may be taken.

(McDaniels