Farley v. Moran

FOOTE, C. This action is on a bond executed by Moran Bros, as principals, and J. W. Doyle and J. C. Wimple as sureties. The principals were never served with summons, and judgment was rendered against the sureties only. From that, and an order refusing a new trial, the defendants bring this appeal.

The bond was given under a proceeding for the condemnation of land for a public use; that is, for the building of a railroad. Those proposing to condemn the land were not associated as a corporation, but as copartners. It is provided in section 1244, Code of Civil Procedure, what parties may file a complaint in such an action; and the principals of the bond involved here are such parties as are included in the provisions of that statute. In section 1248, among other matters which must be done by the court, jury, or referee in assessing the damages by way of compensation to the owner of the land sought to be taken for a public use, is this: “That, if the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle-guards -where fences may cross the line of such railroad,” must be ascertained and assessed by court, jury, or referee upon the legal testimony offered. The complaint in the action for condemnation proceedings, in which the bond in suit was given, prayed that this statutory provision should be complied with, and, in accordance with that prayer, the provision of the law was complied with. The sureties on the bond given in that proceeding under section 1251, Code of Civil Procedure, and against whom a judgment for a breach of the conditions of the bond was made and given in this action, now claim that the bond is void, and cannot [574]be the basis of a recovery in the action. Their argument in support of this proposition is that, as to parties such as the principals on the bond and the defendants here, such a bond could, under the statute, only be given as compensation for damages done to the plaintiff’s land, or the taking of the same for a public use; and that such a bond is not the just compensation “first made or paid into court” for the land owner, as is required by section 14 of article 1 of the state constitution ; that, therefore, the statute which authorizes such a bond as to the parties here giving it is unconstitutional, and the bond unauthorized by any valid law, and entirely void as a contract. The principals of this bond, however, prayed the court to proceed as it did in the condemnation suit, and have the damages ascertained and assessed for the fences required by the statute. They voluntarily gave the bond, and by virtue of that took possession of the plaintiff’s land, and devoted it to a public use; that is, the building of a railroad. They thus received a consideration sufficient to support the contract contained in the bond, even if it be not a statutory bond. Upon a similar question, this court said: “We will not permit a party having complied with the terms proposed, and availed himself of the advantage of the order to question its correctness”: Battelle v. Connor, 6 Cal. 140. And it was said in Hathaway v. Davis, 33 Cal. 169: “Nor is the point that the appeal from the judgment was not taken within time, and that for that reason the undertaking of the sureties was without consideration, available to the defendants. Concede that the undertaking did not operate to legally stay proceedings under the judgment (a point which we do not decide), yet it in fact had that effect, and the appellants received all the benefit for which their sureties contracted; and, were they now allowed to say that their undertaking was nudum pactum, gross injustice might be done to the plaintiff, because he did not choose to act upon a doubtful right.” The cases cited in opposition to this view are not, as we think, in point.