Stockton Unified School District v. Trucco

VAN DYKE, P. J. This is an appeal from a judgment rendered in a condemnation proceeding. The respondent is a school district and for its purposes as such it sought to condemn property belonging to the appellants. It filed its complaint in condemnation on February 1, 1952, and on the same day recorded notice of action pending. Summons was issued February 6th and promptly served on the named defendants. The complaint, the summons and the lis pendens were in the usual and proper form. The complaint alleged that by the action it was sought to condemn for school purposes a described tract of land which we shall hereafter call “Parcel ‘A’ ”; that appellants, naming them, constituted the persons who claimed an interest in said parcel; that defendants Doe One to Doe One Hundred each claimed to have an interest in the parcel, their true names being unknown to the condemnor; that the condemnor sought to condemn a fee simple title in the property. After the service of summons upon them appellants conveyed a portion of Parcel A to Faith Evangelical Lutheran Church, sued in the action as Doe Nine. The deed was recorded April 23, 1952. We shall refer to the parcel transferred by appellants to the church as Parcel B. On June 11th following, the church filed its answer, setting up its title to Parcel B. Appellants did not answer and on May 2, 1952, condemnor demanded that their defaults be entered, which action was taken by the clerk on May 6th. Previous to the demand, however, and on April 25th there was served upon appellants the respondent’s notice of intention to enter default unless they appeared in the action. Appellants made no response. The cause came on for trial on August 14, 1952, between the respondent and the church, no other parties having appeared. On that day the complaint was amended, the amendment alleging that after the filing of the original complaint, and on April 23, 1952, there had been recorded in the county recorder’s office a [367]deed dated February 11, 1952, wherein appellants conveyed to the church Parcel B, being a portion of the property sought to be condemned according to the description contained in the original complaint. It was further alleged that respondent had determined that it would consent to the retention by the church of a portion of said Parcel B and that the property which was sought to be condemned would then consist of Parcel A, less that portion of Parcel B so relinquished. The amended complaint was not served on appellants. On August 15th the court filed its findings of fact and conclusions of law which recited that the cause had come on for trial on the day previous between the church and respondent, there being no other defendants who had appeared; that the appellants had been regularly served with summons and complaint and had failed to answer the same and that their defaults had been regularly entered. It was further recited that evidence had been taken by the court and the court found as follows: That the property being condemned was taken for a public use; that by the aforesaid amendment respondent had abandoned its condemnation of a portion of Parcel B originally proposed to be condemned and described in the original complaint; that the taking in condemnation of the remaining property was necessary for said use; that the church had acquired the portion of Parcel B sought to be condemned by a deed recorded April 23, 1952; that the appellants were the owners in fee of all the property sought to be condemned save and except that portion which they had conveyed by deed to the church; that the value of the property rights of appellants sought to be condemned was $15,800; that the value of the church property sought to be condemned was $1,200. On September 4th following, a final order of condemnation was entered. This appeal followed. The church did not appeal.