Bailey v. Superior Court

THOMPSON (R. L.), J.

This is a petition for a writ of

certiorari

to review the order of the Superior Court of Humboldt County dismissing petitioner’s motion to dismiss an action for condemnation of a right of way for failure to pay the amount of money assessed, within thirty days after the rendering of final judgment, pursuant to section 1251 of the Code of Civil Procedure after an appeal from the judgment had been perfected.

The petitioner is the owner of certain real property in Humboldt County. The state of California, acting through its department of public works, brought an action in the superior court of that county to condemn a fraction of one acre of that land for highway purposes. January 25, 1932, judgment of condemnation was rendered and entered in that action assessing the value of the land to be taken at the sum of $12,200. On February 9, 1932, within thirty days after the entry of judgment, the plaintiff perfected an appeal from the judgment of condemnation. No money was paid upon this judgment by the plaintiff pursuant to section 1251 of the Code of Civil Procedure, or at all. On February 25th this petitioner, who was the defendant in the condemnation proceeding, moved the trial court for a judgment of dismissal of the action in eminent domain on the ground that the failure of the plaintiff to pay the sum of money which was

[750]

assessed within thirty days from the entry of judgment pursuant to section 1251,

supra,

constituted an abandonment of the condemnation proceedings and a waiver of all rights affected by the decree. On application of the plaintiff the motion to dismiss the condemnation suit was dismissed by the trial court on the ground that the perfected appeal stayed proceedings in that action, and that the court was without jurisdiction to dismiss the proceeding in eminent domain. This petition for a writ of review was then instituted.

The petitioner contends that the decree which was rendered in the eminent domain proceedings on January 25th was a “final judgment” of condemnation, and that failure to pay the judgment within thirty days from the entry thereof constituted an abandonment of the proceedings, in spite of the pending appeal from that judgment.