Chase v. Skepner

California Court of Appeal Sep 29, 1933 No. Docket No. 8586.Published

Before: Craig

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Holding. The court affirmed the dismissal of the complaint because the appellants could not challenge a final condemnation judgment through a new suit, but modified the judgment to strike the requirement that appellants pay interest on the deposited funds.

Issues

Whether a final condemnation judgment can be challenged in a subsequent suit after the time for appeal has expired.
Whether interest is recoverable on funds held in court custody during litigation.

Disposition. Affirmed as modified.

Quotations verified verbatim against the opinion

“It is not shown how the appellants may by such a proceeding test the validity of a judgment from which there is no longer a right of appeal.”

“It has very generally been held that where a fund in litigation or the amount of a disputed claim is deposited in court, or subject to its order, interest is not recoverable thereon during the time it remains so deposited.”

CRAIG, J.

In a suit to declare a trust as to certain moneys held pursuant to an order of court after condemnation and to restrain their payment as theretofore directed, a demurrer to the amended complaint was sustained without leave to amend, the respondent municipality having filed its answer therein. The plaintiffs appealed from the judgment entered pursuant to said order. The recent decision of

Orton

Daigler,

133 Cal. App. 112 [23 Pac. (2d) 831], has determined the issues here presented adversely to the appellants.

The respondent Skepner was a lessee in possession from December; 1926, to May, 1930, of certain real property of the appellants, on which latter date the board of trade took possession under assignment from him of all his business and assets. Following appropriate proceedings in a condemnation suit an interlocutory decree was entered in September, 1927, by which the value of said property was adjudged, a portion of the amount was awarded to said lessee, and the balance to his lessors, appellants herein. The latter were at no time deprived of their property, but continued to receive the rentals therefor from the respondent and his successors, during and after its occupancy by him. The appellants alleged that said lessee abandoned with their consent all his right, title and interest in the leased premises in May, 1930, and upon this they predicate their claim to the award to the respondent for his leasehold. But it is not alleged nor contended that such award was excessive, or that it was modified or set aside. The complaint does contain the allegation that said interlocutory decree was

[455]

entered on or about September 27, 1927, “and that there has been no appeal from said interlocutory judgment; and that the time for appeal has expired”. Hence, it cannot be conceded upon any authority cited or known to us that the award held by the clerk pending a determination of the issues herein came to his hands through a violation of any rule of equity, or through accident, fraud or mistake.

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Chase v. Skepner

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CRAIG, J.

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