City & County of San Francisco v. Superior Court

NOURSE, J.

This is an original proceeding in

mandamus

to require the respondent Superior Court to modify an interlocutory judgment in eminent domain proceedings to conform to the verdict of the jury rendered after a trial of the issues.

[320]

The petitioner City and County of San Francisco instituted condemnation proceedings to condemn various parcels of real property owned by the various defendants. A trial by jury was demanded and was not waived by any party to the suit. Such a trial was had which resulted in a verdict assessing the damages to one of the defendants in the sum of $8,000 and to another in the sum of $500. When the verdict was returned to the court and entered, counsel for these defendants moved that it be modified by increasing the amount of damages awarded to them by the jury. This motion was resisted by the city, but the trial judge ordered the awards increased and thereupon entered an interlocutory decree in favor of the city permitting it to take the property upon payment to these defendants of damages which he assessed to be $9,000 in the one instance and $1,000 in the other. Upon the entry of this interlocutory decree the city moved the trial court to modify the judgment to conform to the verdict and this motion was denied.

The proceeding in this court is prosecuted on the theory that the trial judge was without jurisdiction to modify the verdict in the manner followed, and that, the interlocutory decree being void on its face for that reason,

mandamus

is the proper remedy to procure the entry of a proper judgment. The petition is resisted on the ground that petitioner has an adequate remedy by appeal. Counsel for respondent also states, but with apparent lack of confidence, that the trial court acted within its jurisdiction in modifying the verdict.

Mandamus

is an extraordinary remedy issuing to compel an inferior tribunal, body, or person, to perform an act which the law specially enjoins as a duty resulting from an office. It must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. (Secs. 1085, 1086, Code Civ. Proc.) What is a plain, speedy, and adequate remedy in the ordinary course of law is always a question of fact to be determined upon the circumstances of each case, and when it appears that the ordinary remedies would not be plain, speedy, and adequate the court has jurisdiction to entertain the proceeding, and the petitioner is then entitled to the writ as a matter of right.