City of Los Angeles v. Pomeroy

McFARLAND, J.

This is an appeal by defendants from a final judgment of condemnation.

The action was commenced in June, 1893, and, after a full hearing of the merits of the case, and a verdict of a jury establishing the compensation to be paid defendants, and findings of the court, an interlocutory judgment was rendered and entered on June 2, 1898, which determined all the issues in the case, and provided for a final decree of condemnation, upon the deposit, by plaintiff, in court, of the amount of the verdict,— twenty-five thousand dollars, — and certain costs and disbursements, within thirty days after the entry of the interlocutory judgment. The said amount of money was so deposited in court by plaintiff within the thirty days. The defendants appealed to this court from the interlocutory judgment and from an order denying a motion for a new trial, and the judgment and order were here affirmed on June 3,1899. (See

Los Angeles

v.

Pomeroy,

124 Cal. 597.)

Upon the going down of the

remittitur,

the plaintiff gave notice of the motion for the entry of a final judgment of condemnation. Defendants presented a written objection and opposition to the motion, in which reference was made to two affidavits which they had filed with the clerk,—one made by J. D. Hooker and the other by R. H. F. Variel. In the affidavit of Hooker, the only facts stated were, that the judge of

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the superior court before whom the case had been tried was at the time of the trial, and still is, the owner of certain real property of the value of more than five thousand dollars, within the city of Los Angeles, plaintiff in the case, and was a water-rate payer within said city; and it was declared in the affidavit, that, for the reason of the existence of these facts, the said judge was disqualified to sit in that case, and that the interlocutory judgment was void, and no further proceeding should be had in the cause. In the affidavit of said Variel these facts were stated, viz.: that on April 29, 1896 (which was within thirty days after the date of the interlocutory judgment), plaintiff deposited with the clerk the amount of money above stated; that the court made a minute order reciting such deposit; that afterwards, on August 27, 1896, the clerk deposited said money with the county treasurer, and that the money was deposited “subject, as such treasurer has stated to affiant, and as affiant is informed and believes, to the order of the superior court, and not subject to the order of said defendants.” The only other facts stated in this affidavit are the dates of the notices of appeal from the interlocutory judgment and from the order denying a new trial. No other evidence was offered by defendants at the hearing of the motion for final judgment of condemnation.