Darbee v. Superior Court

California Court of Appeal May 28, 1934 No. Civ. No. 9469Published

Before: Sturtevant

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Holding. The court held that a trial court has jurisdiction to modify or vacate an ex parte order for immediate possession in an eminent domain proceeding without notice, pursuant to Code of Civil Procedure section 937. Furthermore, the court found the eminent domain action was properly brought by the county under constitutional and general statutory authority, rather than under the specific statute challenged by the petitioner.

Issues

Whether a trial court has jurisdiction to amend or vacate an ex parte order for immediate possession without notice or hearing.
Whether the eminent domain action was improperly brought under an unconstitutional statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The petitioner asserts that the trial court had no jurisdiction to amend, modify or vacate its order ex parte and without notice or hearing afforded the parties. We think the point may not be sustained.”

“Section 937 of the Code of Civil Procedure provides as follows: “An order made out of court without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it”

STURTEVANT, J. The petitioner is here seeking annulment of an amended ord'er for immediate possession made in a proceeding in eminent domain. Heretofore “County of San Mateo, a political subdivision of the State of Cali[711]fomia” commenced an action in eminent domain against this petitioner and man> others. Those parts of the complaint in that action material to a consideration in this action are as follows: (After title of court and cause), “Complaint in eminent domain. Plaintiff above named brings this proceeding in eminent domain and for grounds of said proceeding alleges that:

“I.

“Plaintiff County of San Mateo is a county and political subdivision of the state of California, duly formed, organized, and existing under and by virtue of the laws of the state of California, and as such county and political subdivision of the state is in charge of constructing and maintaining highways within said county, and is by law vested with authority to exercise the power of eminent domain for the purpose of acquiring rights of way in the construction and maintenance of highways.” Paragraphs II and III designate and describe certain defendants.

“IV.

“That prior to the commencement of this action and on the 4th day of December, 1933, the board of supervisors of the county of San Mateo of the state of California duly passed and adopted a resolution, determining and declaring that public interest and necessity required the acquisition by said county of San Mateo through eminent domain proceedings, of a right of way in and over the lands hereinafter ' described for purposes of a public highway to be constructed thereon by the county of San Mateo of the "State of California. Said resolution was adopted by said board of supervisors of the county of San Mateo of the state of California and is in words and figures as follows, towit:

“ ‘Resolved, that public interest and necessity require the acquisition by the county of San Mateo, a political subdivision of the state of California, of the following parcels of real property situate in the county of San Mateo, state of California, more particularly described as follows towit: Parcel 1-A: All that certain parcel of land situate in San Mateo county, state of California being a strip of land lying easterly of the westerly right of way line of Junípero Serra Boulevard Extension, under authority of “Joint Highway District No. 10 of the State of California,” said right of way being 87.5 feet westerly and concentric with the surveyed

Darbee v. Superior Court

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