City of Los Angeles v. Pomeroy

THE COURT.

—The plaintiff brought this action to condemn the lands described in the complaint for the purpose of constructing head-works for its domestic water-supply. Such proceedings were had that a judgment of condemnation was made and entered in April, 1896, in favor of plaintiff, and awarding defendants the sum of twenty-five thousand dollars as damages for the land. Upon appeal this judgment was affirmed by this court.

(Los Angeles

v.

Pomeroy,

124 Cal. 597.) Upon the

remittitur

being sent to the court below, plaintiff made a motion for a final order of condemnation, alleging that the damages and costs awarded to defendants had been fully paid. This motion was supported by affidavits on behalf of plaintiff.

Defendants opposed the motion, claiming that the amount

[341]

of damages had not been paid. At the same time, defendants asked leave to file affidavits in opposition to the motion, and to be permitted to file a motion to set aside the judgment and decree that had been entered. The court refused to hear defendants’ motion, or to receive or hear the affidavits in opposition to plaintiff’s motion.

Thereupon, on the twelfth day of July, 1899, the court made an order that a final order of condemnation be entered as prayed for, and as provided in section 1253 of the Code of Civil Procedure, which order was accordingly entered.

This was a special order, made after final judgment.

(California Street R. R. Co.

v.

Southern Pacific R. R. Co.,

67 Cal. 63.) It was appealable. (Code Civ. Proc., subd. 3, sec. 939.) Within due time defendants appealed to this court from the said order, and gave an undertaking in due form in the sum of three hundred dollars, which appeal is now pending. The defendants claim that the court erred in making the final order without allowing them to offer evidence as to the fact of the damages not having been paid, and they claim that the judge was disqualified, and therefore had no authority to make the order. As these matters go to the merits of the appeal, they need not be here discussed. This is an application for a writ of