Eberle v. Hubbard

California Court of Appeal Apr 18, 1912 No. Civ. No. 1074.Published

Before: THE COURT. —

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Holding. The court held that a peremptory writ of mandate should issue to compel city officials to pay condemnation awards to property owners, as the underlying judgment was final and no stay of proceedings had been granted.

Issues

Whether city officials may withhold payment of final condemnation awards pending the outcome of a separate appeal challenging the validity of the street widening proceedings.
Whether a mandamus proceeding is the appropriate venue to review the correctness of a trial court's refusal to grant a stay of proceedings pending appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The hands of the officers of the city were left untied, and it became their plain duty under the law to proceed with the adjustment of the judgment claims of petitioners.”

“A peremptory writ of mandate is ordered to be issued.”

Synopsis

Eminent Domain—Lands Condemned fob Street Widening—Assessments in Treasury—Mandamus—Appeal Pending not Considered —Absence of Stay.—Where lands were condemned in an action for street widening, and the assessments were collected and paid into the city treasury, and there was no appeal from the judgment of condemnation, and the trial court decided in favor of the validity and regularity of the proceedings, and there was no stay pending an appeal involving such validity and regularity, a proceeding in mandamus to compel the payment of such funds in the treasury to the property owners cannot serve to review the correctness of the action of the trial court; and where the board of public works refused to draw warrants for such funds in favor of the property owners, pending such appeal, a peremptory writ of mandate will be granted to compel such action.

Id.—Bbhearing — Affirmance of Judgment Appealed from — Peremptory Writ.—Where a rehearing was granted for further consideration, and pending such rehearing the judgment of the trial court as to the validity and regularity of the proceedings for condemnation was affirmed upon appeal, and upon such rehearing the original opinion was adopted and approved, the peremptory writ of mandate must issue in accordance therewith.

THE COURT.

An opinion herein was filed in this court on January 15, 1912, wherein, upon application of petitioners, a peremptory writ of mandate was ordered to be issued as

[705]

prayed for. Thereafter, upon application of respondents and intervenors, a rehearing of said matter was ordered. In view of the fact that this court has filed an opinion, April 2, 1912, affirming the judgment of the trial court in the case of

S. M. Bernard Co.

City of Los Angeles, ante,

p. 626, [124 Pac. 88], (Civil No. 1127), wherein this proceeding originated, and, upon further consideration of the matter, being fully satisfied with the opinion heretofore filed herein, we readopt the same as the opinion of the court. The opinion referred to follows:

“After due proceedings had preliminary thereto, the city of Los Angeles, on July 3,1907, brought an action to condemn certain lands for the purpose of adding to the width of Eighth street in said city. Interlocutory judgment was thereafter entered, determining the amount of damages to be paid for the taking of the land. Assessments were then levied upon the property of a benefited district duly described by ordinance, and subsequent thereto the sum of $161,454.48 was collected on these assessments for the purpose of paying the damages fixed by the court in the condemnation proceeding. This money was placed in a special fund in the city treasury where it has since remained. All the petitioners, except Sarah M. Hamble, are property owners who were awarded damages. No appeal was taken from the judgment of condemnation and that judgment has become final. The defendant's constituting the board of public works of the city of Los Angeles refuse to order warrants to be issued in favor of petitioners, and the defendant treasurer refuses to pay to petitioners the amounts severally awarded to them by the court. For answer to the alternative writ issued herein, the defendants set up that an action is now pending on appeal in the supreme court, wherein the validity and regularity of the proceedings had and taken in the matter of the widening of Eighth street are brought into question, and that the city of Los Angeles has withheld payment of the awards for damages pending final decision in the ease mentioned. The suit referred to was one in which one Bernard and others, owners of property, which was assessed to pay the cost of the street improvement, sought to. have the proceedings declared void and to have injunctive relief preventing a sale' of. their properties on account .of delinquent assessments. The trial court refused the, relief asked for and decreed that the proceedings for the" widening

Eberle v. Hubbard

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Synopsis

THE COURT.

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