City of Laguna Beach v. American Legion Post No. 222

BARNARD, P. J. These four appeals arise out of an eminent domain proceeding begun by the City of Laguna Beach in connection with an improvement project known as Acquisition and Improvement District No. 4 of the City of Laguna. The proceeding is one under the “Acquisition and Improvement Act of 1925“ as amended (Deering’s Gen. Laws, 1931, p. 1594). The four appeals were consolidated and have been submitted upon one set of briefs and upon stipulated facts.

A complaint was filed on November 3, 1930, and, by answer, the respondents put in issue the value and severance damages to their respective pieces of property. An interlocutory judgment fixing the amount of damages to be paid to the respondents, respectively, was entered and recorded on January 19, 1932. After due proceedings, the city council of the appellant city ordered bonds issued in the necessary amount to pay the awards and fixed a date for receiving bids for said bonds. On two occasions the city council gave notice inviting bids on said bonds, but no bids were ever received. Although repeated efforts were made by the appellant to sell said bonds and although the appellant was at all times willing, and was at all times attempting, to sell the same for the purpose of raising money to pay the awards in question, the appellant was unable to sell the same or to secure any bid therefor up to the time judgment of dismissal was entered. By reason of the inability of the appellant to sell said bonds there has never at any time been any money in the hands of the appellant’s treas[384]urer with which to pay the amounts of the respective awards.

Between February 15, 1933, and March 10, 1933, the various respondents moved to dismiss the action and for their costs and disbursements, including attorney’s fees. These motions were made under the provisions of section 1255a of the Code of Civil Procedure and based upon section 1251 of that code, it being the theory and contention of the respondents that the failure of the appellant to pay the amounts assessed within one year from the date of the interlocutory judgment constituted an implied abandonment of the proceeding. These motions were granted and judgments of dismissal were entered, including orders for costs and attorney’s fees, from which these appeals were taken.

The main question presented is whether sections 1251 and 1255a of the Code of Civil Procedure are controlling under these circumstances. It is respondents’ contention that these code sections are applicable, while the appellant contends that the Acquisition and Improvement Act of 1925 contains a complete scheme for the carrying through of a condemnation action and contains provisions so inconsistent with the code sections named as to make the same inapplicable. Section 26 of this act makes the general provisions of the Code of Civil Procedure applicable to such proceedings “except in the particulars otherwise provided for in this act”. Section 51 provides that any provision contained in any other act which is in conflict with any provision of this act shall be void and of no effect in any proceeding commenced under this act. Section 37 provides in part as follows: