McDaniels v. Dickey

THOMPSON, J.

This appeal is from a judgment of dismissal entered pursuant to an order sustaining without leave to amend the demurrer of the defendants G. W. Dickey, Loraine Dickey and Charles K. Heard to appellant’s complaint.

The complaint alleges, in effect, that on February 20, 1928, an action.in eminent domain was commenced by the City of Los Angeles against G. W. Dickey, Loraine Dickey and

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others as the owners of a parcel of property described in the complaint in condemnation; that thereafter and on the seventeenth day of May, 1929, an interlocutory judgment was entered in book 730 at page 80 of Judgments; that by the terms of the interlocutory judgment it is provided that the total compensation proper to be paid to the defendants G. W. Dickey and Loraine Dickey as the owners of the aforementioned parcel of land was the sum of $1276.73; that the compensation for the property has not been paid and that final judgment in said proceedings has not been entered.

The complaint then alleges that on or about the nineteenth day of June the defendants G. W. Dickey and Loraine Dickey by grant deed, recorded on August 6, 1929, sold and conveyed to plaintiff certain real property situated in the city of Los Angeles, county of Los Angeles, and more particularly described as the east 80.28 feet of the west 105.28 feet of the south 175 feet of lot 66, plat 1000 “as per map recorded in Book 19 page 1 et seq. of Maps in the office of the County Recorder of said County; subject to an easement on the Easterly portion thereof under proceedings for condemnation instituted in Superior Court of said County in Case No. 245510.

“Subject to all taxes for the fiscal year 1929-30; Subject to street bonds for improvement of Blvd. upon this and other property;

“Subject to conditions, restrictions, reservations, rights, rights of way and easements of record.” It was also alleged that the defendants agreed with the plaintiff “that the sum of money to be paid under said proceedings in condemnation . . . for an easement over the easterly portion thereof should be paid to the plaintiffs”, and that the necessary papers therefor would be executed; and that defendants had refused to execute an assignment evidencing plaintiff’s right to receive the compensation from the city. The prayer of the complaint was that the city be required to pay the amount of the award into court or retain the same until plaintiff’s right to a portion thereof could be determined.