City of San Diego v. Cuyamaca Water Co.

CONREY, P. J.

In this action to condemn real property for public use, compensation and damages were assessed by a jury’s verdict, which was returned and filed on the ninth day of July, 1925. Other issues relating to the action were tried before the court without a jury, and on those

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issues findings of fact were signed by the judge and filed on the twenty-second day of August, 1925. These findings, while they recite that an order had been made directing that the issues involving compensation and damages be submitted to a jury, did not directly include any statement of the amount of compensation and damages which had been awarded by the jury. The court, however, did proceed to include, with its findings of fact, conclusions of law to the effect that the plaintiff is entitled to a judgment of condemnation, and directed that judgment be entered accordingly.

Thereafter, the plaintiff served and filed its notice of intention to move for a new trial of the issues submitted to and determined by the jury. On the 4th of September, 1925, the court made and entered an order granting plaintiff’s said motion for a new trial of that portion of the case decided by the jury. Formal entry of the judgment of condemnation has not been made. On the thirtieth day of September, 1925, the defendants served and filed notice of appeal “from that certain portion of the judgment made and rendered in said action on the 22nd day of August, 1925, which adjudges that the plaintiff is entitled to condemn the lands described in its complaint as amended, subject to the reservations and restrictions contained therein and the further restrictions in the findings of fact and conclusions of law specified”; also “from the order made and entered on the 4th day of September, 1925, granting plaintiff’s motion for a new trial of that portion of the ease decided by the jury and setting aside the verdict of the jury heretofore rendered in said action on the 9th day of July, 1925, and from the whole of said order.”

Now comes the plaintiff and moves that an order be made dismissing the appeal which is an appeal from a part of the judgment. This motion is made “upon the ground that no final judgment has been rendered, given, or entered in said action, and that said appeal was prematurely taken.”