City of Oakland v. Williams

NOURSE, J.

On May 29, 19'22, the City of Oakland commenced an action under the Street Opening Act of 1903 (Stats. 1903, p. 376) to condemn certain property for the purpose of extending a public street. Isabella Thompson was joined as a party defendant because of her interest as a lessee of a part of the premises sought to be condemned. At the trial it developed that she had entered into the lease in expectation of the condemnation proceedings and had, contemporaneously with the execution of the lease, signed a waiver of any claim she might have against her lessor in the event the city should effect a cancellation of the lease by reason of the condemnation of the property. Upon this showing the trial court held that she had no interest in the property entitling her to any compensation from the city. An interlocutory judgment was then entered fixing the compensation to be paid the other defendants and awarding to the city the property in suit in accordance with the provisions of section 12 of the act of 1903, as amended. (Stats. 1909, p. 1040, sec. 7.)

This judgment was entered on January 20, 1923. Six months later a final judgment was entered in accordance with the provisions of section 31 of the act of 1903, reciting that payment of the amounts awarded to the respective parties by the interlocutory judgment had been made and confirming the award of the property to the city. No appeal was taken from the interlocutory judgment by the defendant Thompson, but on September 7, 1923, more than seven months after its entry, she gave notice of appeal from the final judgment. This is the appeal which is now before us. It is presented on the judgment-roll and a bill of exceptions.

The statute under which the cause originated provides that an appeal may be taken from the interlocutory judgment within thirty days from the entry thereof. (See. 13.) It does not expressly provide for an appeal from the final judgment, but section 6 thereof, as amended (Stats. 1909, p. 1037, sec. 2) provides that an action brought under the act shall be subject to and governed by the Code of Civil Procedure except where otherwise specified. The general code provision for appeals is found in section 956 of the Code of

[703]

Civil Procedure. This section reads in part: “The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken.”