City of Los Angeles v. Higgins

STEPHENS, P. J. This cause arises out of an eminent domain proceeding, wherein the City of Los Angeles sought to take property belonging to defendant and respondent for street purposes under the Street Opening Act of 1903, as amended. (Deering’s Gen. Laws, 1923, p. 3309, Act No. 8198, Stats. 1903, p. 376, and acts amendatory thereof.) The interlocutory judgment was signed May 7, 1929, after the determination of awards. Such awards are to be paid from a special fund to be collected by the bureau of assessments of the City of Los Angeles from an assessment levied under and pursuant to the provisions of the Street Opening Act of 1903, which assessments may be represented at the option of those assessed by bonds to issue under and pursuant to the Street Opening Bond Act of 1911. On April 25, 1930, the court denied defendant’s motion to dismiss. Thereafter, he filed another motion to dismiss which was granted July 21, 1931. This motion was based solely upon the files of the case and under section 1255a of the Code of Civil Procedure, upon the theory that an implied abandonment had taken place under section 1251 of the Code of Civil Procedure. Section 1251 of the Code of Civil Procedure states that awards in street opening cases shall be paid within 30 days after interlocutory judgment, or in the event bonds are. to issue, within a year. The 'Street Opening Act of 1903, however, provides by section 31 thereof that awards shall not be paid until there is sufficient money collected therefor to pay them. It would be highly impractical, if not impossible, to collect such money within such a specified time and we think, therefore, that section 1255a is not applicable to the situation. (City of Los Angeles v. Agardy, 134 Cal. 69 [24 Pac. (2d) 915].)

Judgment reversed.

Craig, J., and Archbald, J., pro tem., concurred.