Alameda County v. Crocker
Before: Chipman
Synopsis
Condemning Lands fob Highway—General and Special Findings —Reference to Pleadings—Certainty.—In an action to condemn lands for a public highway, a general finding “That all the facts alleged in the complaint are true, except as to those hereinafter specified,” and special findings following, which are inconsistent with certain allegations of the complaint as to all of the property sought to be condemned, and which specifically set forth the ownership, acreage, value, damages, and benefits to the tracts belonging to the defendants, about which any issue was presented, and which covered the entire lands in controversy, are not uncertain or obscure, and necessarily exclude the idea of any ownership in a fictitious defendant named in the complaint, with respect to which no issue was joined.
Id.—Defendants Sued by Fictitious Names—Amendment to Complaint—Judgment upon Appeal.—Where defendants sued by fictitious names, were served, and appeared and answered by their true names, the complaint must be amended to insert their true names, but where such amendment was not made, and the specific rights in the land condemned of all persons sued by fictitious names were in fact determined, the absence of the amendment is not ground for ordering a new trial; but the judgment upon appeal will direct the lower court to amend the complaint as of date prior to the judgment, in order to support the judgment.
Id—Premature Judgment as to One Defendant — Final Judgment—Vacation—Presumption upon Appeal.—Where the court improperly entered a premature judgment condemning the interest of one defendant not appearing, before other defendants had appeared and answered, and properly included the interest of that defendant in the final judgment of condemnation of the interests of all the defendants, it will be presumed, upon appeal of another defendant, that the court made an order vacating the premature judgment, and such judgment must be deemed harmless as to the appellant.
In—Costs—Appeal from Judgment—Presumption.—Where no costs . were awarded to the defendants, whose lands were condemned, and the appeal is from the judgment, upon the judgment-roll alone, and there is nothing in the record to show whether a cost bill was presented, or what items of costs were claimed, it must be presumed, in support of the judgment, that appellant failed to present a cost hill showing items properly chargeable to plaintiff.
CHIPMAN, C. Action to condemn lands for a public high-way in the county of Alameda. There were twelve defendants named in the complaint, four of whom were sued by the fictitious names of John Doe, Richard Roe, John White, and James Black; Mary V. Baldwin, George W. Patterson, R. W. Allen, and Catharine M. Allen, whose names do not appear in the complaint, appeared as defendants. George W. Patterson an-swered under the name of Richard Roe, claiming to own the land alleged to belong to A. Patterson; R. W. Allen was served under the name of Richard Roe; Catharine M. Allen appeared by demurrer under .a fictitious name not stated; the Allens (R. W. and Catharine) answered “as sued and served under fictitious names"(the fictitious names not stated) claiming to own the laud alleged to belong to Mrs. F. J. Hall, alias Phebe J. Hall, defendant named in the complaint, and Mary V. Bald-win appeared by demurrer under the name of John Doe. Ho amendment of the complaint was made inserting the true names of these four who appeared after the complaint was filed. Defendant Pope defaulting, a preliminary decree was entered against him August 24,1894, and a final decree October 29, 1894, condemning his lands, and on March 13, 1895, the final decree against Pope was amended as to a description of his lands. Defaults as to all the other defendants were taken, except as to defendants Crocker, Dillon, the Allens, and appellant Jordan, and upon the issues raised by their answers the case was tried August 25, 1896. The court filed findings, and ordered judgment for plaintiff as prayed for. Thereafter, an interlocutory decree and subsequently a final decree were entered, which final decree included all the defendants in the case. From these twolast mentioned decrees the appeal is taken by Isabella E. Jordan.
[1031]. The court made the following finding: “That all the facts alleged in the complaint .... are true, except as to those hereinafter otherwise specified, and as to those allegations the court finds as follows.” The court then takes up the parties and the several pieces of property sought to be condemned, and finds specifically as to the ownership, acreage, value, and damages and benefits to the tracts belonging to defendants Crocker and Dillon, appellant Jordan, Phebe Hall (found to belong to B. W. and Catharine Allen); and, as conclusions of law, the court finds that Crocker and Dillon, Jordan, and the Allens are entitled to damages.
Appellant contends that the above finding is insufficient because uncertain and obscure. It is said: “It may mean that it was the intention of the court to indicate subsequently in its findings those allegations which it found to be untrue; or it may mean that all the allegations of the complaint were true except so far as inconsistent with the facts subsequently found.” It is claimed that if the former of these intentions is to be taken as the purpose of the court, it failed to point out the allegations it intended to declare to be untrue; and if the second construction suggested be the true one, then the general finding in question would not comply with the code. (Citing Johnson v. Squires, 53 Cal. 37; Harlan v. Ely, 55 Cal. 340; Bank of Woodland v. Treadwell, 55 Cal. 379.) We think the natural reading of the finding is, in effect, that all the facts alleged in the complaint are true, except as to those facts therein alleged and in the findings otherwise specified, as to which the facts are not necessarily untrue, but are as found specifically by the court. In the cases cited the finding left something undetermined, so that the court could not ascertain precisely what facts had been found. Here the finding is that the facts set forth in the complaint are true except as to certain particulars, and as to these the facts are as specifically found. For example: The complaint alleged that the value of the land belonging to defendants Crocker and Dillon does not exceed one dollar; the finding is that its value is fifty dollars; and so as to appellant’s land, sought to be condemned, which was alleged to be of the value of one dollar, the finding is that it is of the value of sixty dollars; certain land is alleged to belong to
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