Bailey v. Superior Court

This is a petition for a writ of certiorari to review the order of the Superior Court of Humboldt County dismissing petitioner’s motion to dismiss an action for condemnation of a right of way for failure to pay the amount of money assessed, within thirty days after the rendering of final judgment, pursuant to section 1251 of the Code of Civil Procedure after an appeal from the judgment had been perfected.

The petitioner is the owner of certain real property in Humboldt County. The state of California, acting through its department of public works, brought an action in the superior court of that county to condemn a fraction of one acre of that land for highway purposes. January 25, 1932, judgment of condemnation was rendered and entered in that action assessing the value of the land to be taken at the sum of $12,200. On February 9, 1932, within thirty days after the entry of judgment, the plaintiff perfected an appeal from the judgment of condemnation. No money was paid upon this judgment by the plaintiff pursuant to section 1251 of the Code of Civil Procedure, or at all. On February 25th this petitioner, who was the defendant in the condemnation proceeding, moved the trial court for a judgment of dismissal of the action in eminent domain on the ground that the failure of the plaintiff to pay the sum of money which was

The petitioner contends that the decree which was rendered in the eminent domain proceedings on January 25th was a “final judgment” of condemnation, and that failure to pay the judgment within thirty days from the entry thereof constituted an abandonment of the proceedings, in spite of the pending appeal from that judgment.

With respect to judgments in condemnation proceedings, section 1251 of the Code of Civil Procedure reads in part: ‘1 The plaintiff must, within thirty days after final judgment, pay the sum of money assessed.” That portion of section 1255a, of the same code, upon which the petitioner relies reads as follows: “ . . . Failure to comply with section 1251 of this code shall constitute an implied abandonment of the proceedings.”

The petitioner’s motion to dismiss the condemnation proceedings was presented to the wrong court. After an appeal from the judgment had been perfected to the District Court of Appeal, the trial court was without jurisdiction to entertain the motion to dismiss the action. (Sec. 949, Code Civ. Proc.; 2 Cal. Jur. 415, sec. 178; Colusa etc. R. R. Co. v. Superior Court, 31 Cal. App. 746 ; Mt. Shasta Power Corp. v. Dennis, 66 Cal. App. 186 [ 225 Pac. 877 ].) In 2 California Jurisprudence, page 415, section 178, it is said:

“The service and filing of a proper notice of appeal from final judgment in an action transfers the action from the superior court to the appellate court, and divests the superior court of further jurisdiction in the cause except as to matters not affected by the judgment or order appealed from. The trial court has no longer any power or control over the action, and cannot proceed further as to matters embraced in the judgment until the appeal is heard and determined and its jurisdiction is restored.”

In view of the fact that the trial court was without jurisdiction to dismiss the condemnation proceedings, it is unnecessary for this court to determine the question as to whether a failure on the part of the state to pay the amount of money which was assessed by the judgment in this case constituted an implied abandonment of the cause.

The order denying petitioner’s motion to dismiss the condemnation proceedings is affirmed.

Plummer, J., and Preston, P. J., concurred.