Southern Public Utility District v. Silva

Within 30 days from the date of the judgment, plaintiff filed an affidavit pursuant to section 1251 of the Code of Civil Procedure, declaring that to provide money necessary to pay the award, bonds of the district must be issued and sold. That, of course, extended to one year from the date of the judgment the period of time within which to pay the award.

Six months later (nearly seven months after the date of the judgment) plaintiff filed a notice declaring that it “hereby abandons the proceeding on file herein,” and moved for an order of abandonment and for judgment dismissing the proceeding. This motion was denied and plaintiff has appealed from the order of denial.

The order must be affirmed. The purported abandonment was without authority in law. It came too late. [The time for appeal, motion for a new trial, or a motion to vacate the judgment had passed.]^[1] The applicable statute authorizes a plaintiff to “abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment.” (Code Civ. Proc., § 1255a.) [Italics added.]

[The term “final judgment” as used in section 1255a of the Code of Civil Procedure means a judgment when all possibility of direct attack thereon by way of (1) appeal, (2) motion for a new trial, or (3) motion to vacate the judgment, has been exhausted. (Code Civ. Proc., § 1264.7.) Any statements to the contrary in City of Los Angeles v. Deacon, 3 Cal.2d 641 at 648 [2] [ 46 P.2d 165 ], are overruled; likewise, contrary statements in City of Los Angeles v. Aitken, 32 Cal.App.2d 524 at 528 [2] et seq. [ 90 P.2d 377 ], are disapproved.]

Plaintiff’s main argument is that sections 1251 and 1255a are to be read together, with the result, it claims, that extension of the time within which to pay (by filing the affidavit sanctioned by § 1251) extends the time within which to abandon (by filing the affidavit prescribed by § 1255a).

There is no such interlacing of the provisions of these two sections. They deal with different subjects (payment and abandonment, respectively) and. have different purposes and objectives. Section 1251 has been in the code ever since

In January of 1911, the decision in Southern Pac. Co. v. Reis Estate Co., 15 Cal.App. 216 [ 114 P. 808 , 810], was rendered in which the court stated that a condemnor “is entitled to abandon the claim to the property and ask a dismissal before the expiration of thirty days from the entry of the judgment” (p. 218) and held that in such a case the costs to which the condemnee was entitled did not include “necessary and reasonable expenses in preparing for and defending this action” (p. 217), such as expenses incurred for “surveying and engineering work and maps and . . . attorney’s fees” (p. 218). By a legislative bill introduced and passed that session and approved by the governor March 17, 1911, the Legislature added section 1255a to the code, using therein language so similar to that used by the court in the case cited that it is a fair inference that the Legislature had that decision before it and was considering solely the subject of abandonment and costs upon abandonment and was not considering any other subject such as the time within which an award must be paid by a condemnor as prescribed in section 1251. []^[2]

[The judgment of the award to the defendant had become final.

The extension, from 30 days to one year, of the time within which the plaintiff must pay the award is for the convenience of the plaintiff in seeking to obtain the money through the medium of a bond issue. Its obligation to pay is fixed and is not subject to diminution or modification by the lapse of time.]

Plaintiff makes an additional argument based upon that provision of section 1255a which declares that “failure to comply with section 1251 of this code shall constitute an implied abandonment of the proceeding. ’ ’ That simply means that if the condemnor (not having abandoned within the time limited therefor by section 1255a) fails to pay the