People ex rel. Department of Public Works v. Cheda

DRAPER, J. After entry of judgment in this condemnation action, plaintiff deposited in court $149,710.50, the total of the awards for the three parcels involved. A portion of this amount was paid by the clerk of the court to certain of the defendants. Plaintiff then filed an affidavit alleging that the property was subject to the lien of a sanitary district securing assessments then unpaid. On plaintiff’s application, defendants were ordered to show cause why the amount of the lien should not be deducted from the amount remaining on deposit. The clerk was directed to retain the remaining deposit until disposition of the order to show cause. At hearing, it was established that there were three assessments for a total, with interest to due date of bonds issued thereon, of $19,409.41, that these assessments were secured by lien, and that they were not due at date of entry of judgment. The trial court nonetheless denied the deduction sought by plaintiff and discharged the order to show cause. Plaintiff appealed. We granted writ of supersedeas requiring the trial court clerk to retain $19,409.41 pending further order of this court.

Appellant relies upon Code of Civil Procedure, section 1248, subdivision 8, which provides: “When the property sought to be taken is encumbered by a mortgage or other lien, and the indebtedness secured thereby is not due at the time of the entry of the judgment, the amount of such indebtedness [533]may be, at the option of the plaintiff, deducted from the judgment, and the lien of the mortgage or other lien shall be continued until such indebtedness is paid.”

On its face, this section appears fully to support appellant’s position that the amount of the lien should be deducted from the judgment. Respondents, however, argue that appelit, in court, of the full amount of the judgment. There is no lant’s right to compel deduction terminated upon deposit by question that, once the amount of the judgment is paid to the owner by the condemnor, the latter has no cause of action against the former owner for the amount of any preexisting lien later discovered and paid by the condemnor. (Marin Municipal W. Dist. v. North Coast W. Co., 40 Cal.App. 260 [180 P. 620].) As stated there (p. 262), the code section “gives to the person taking property by proceedings in eminent domain the right to retain from the sum of money to be paid for it the amount necessary to discharge any lien existing thereon, but his neglect to adopt this course would not give rise, in the absence of some other provision of law creating it, to a right of action to recover it when once paid.” In the case at bar, appellant asserts no cause of action against respondents. It seeks only to withhold from funds yet unpaid to respondents an amount sufficient to discharge a lien which is clearly an encumbrance upon the land.