People v. Broome

NOURSE, P. J.

Plaintiff sued to condemn a portion of a tract of land to be used by the state for a highway maintenance station. The cause was tried with a jury, which fixed defendants’ damages at $4,000. The clerk entered judgment upon the verdict and thereafter the trial court made findings and entered an interlocutory judgment, which was followed in due time by a final judgment. The defendant Lantz alone has appealed from all three judgments upon typewritten transcripts.

The clerk’s entry of a judgment upon the verdict was premature and inadvertent.

(Vallejo & Northern Ry. Co.

v.

Reed Orchard Co.,

169 Cal. 545, 558 [147 Pac. 238].) The verdict related to the issue of damages alone, whereas the trial court was required to draw findings upon the other issues and to enter judgment thereon.

(Idem,

p. 556.) Thus the entry by the clerk was an idle act, which was cured by the findings and judgment thereafter made, and hence the appeal from the clerk’s judgment presents a moot question and, for that reason, it is dismissed.

The attack upon the second judgment, based upon the ground that the court had no power to make it because an appeal from the clerk’s judgment was pending, is without merit. The trial court found that the clerk’s entry was made while the cause was still reserved for decision by the court. As the judgment entered by the clerk was an idle act the defendant could not oust the court of jurisdiction to enter a proper judgment by taking an appeal from the clerk’s entry.

It is argued that the complaint failed to state a cause of action because it did not define a “maintenance

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station” and because it did not describe the entire parcel which would be affected by the proposed condemnation. If there was any uncertainty as to the meaning of the words “maintenance station” that was a matter for special demurrer. The proceeding was instituted upon the authority of the resolution of the state highway commission, acting under provisions of section 363 (h) of the Political Code, as amended by Statutes of 1927, page 423, section 9. This resolution declared that public interest and necessity required the construction of a “state highway maintenance station” upon the land described, as “public improvement”. By the terms of section 363 (h) this resolution was conclusive of the public necessity of the improvement, and as the complaint pleaded the resolution in full it is not subject to general demurrer upon the grounds stated. As to the second objection, the appellant has not cited any authority holding that the complaint must describe other property than that proposed to be condemned. The complaint followed the requirements of section 1244 of the Code of Civil Procedure. If the property described was in fact a portion of a larger tract which would suffer damage from the severance, that is a matter which could not be reached on demurrer to the complaint.