Reed Orchard Co. v. Superior Court

This is an application for a writ of supersedeas to prevent the Vallejo and Northern Railroad Company from taking possession of certain real estate during the pendency of an appeal from a judgment of condemnation. The petition for the writ alleges that the Reed Orchard Company has been and now is the owner in fee of a certain tract of land containing one hundred and forty acres, more or less, in Tolo county, known as the Reed Orchard; that petitioner, the People’s Savings Bank, has been and now is the holder of a deed of trust covering the whole of said property and securing over $35,000 due from the said Reed Orchard Company to said bank, the said deed of trust being of record in the county recorder’s office of said Yolo county; that petitioner Komano has a lease of said premises for the term of five years beginning November 1, 1907, and that he has paid the rental to date, including $3,750 due January 1, 1912 (being one-half of the rental for the year ending November 1, 1912), but that the $3,750 due July 1, 1912, has not been paid; that on the fifth day of May, 1910, the Vallejo

For the two following reasons it is urged that the court should issue the writ: 1. By reason of said appeals the enforcement of the judgment in said condemnation proceeding has been stayed, and therefore the superior court has no authority to authorize the plaintiff in said action to take possession of or use said property until after the final determination of said appeals; and 2. In consequence of the failure of the jury and of the court to fix the value of the respective interests of the defendants in said action in and to the property condemned, none of petitioners can determine or demand from the clerk the amount of his respective interest. The duty of the jury to segregate the damages and to make the respective awards as contended for is claimed to be imposed by section 1254 of the Code of Civil Procedure, and by reason of said omission it is urged that there is really no valid judgment to be executed.

It is virtually conceded that the writ of supersedeas will issue to prevent action on a judgment only where the appeal from the judgment operates as a stay of proceedings. Or, as it has been stated: “Where the appeal acts as a supersedeas, the appellate court will issue a writ of supersedeas or stay of proceedings when the trial court is about to issue an execution

The first question to be determined, then, is whether the ap-° peal taken by petitioners operated to stay proceedings upon the judgment of condemnation; and this is to be considered in the light of the principle that no stay of execution is effected by an appeal unless by virtue of some statutory provision. In the Poster case, supra, it is said: “The effect of an appeal from the judgment, upon the judgment appealed from, is a matter of statutory regulation, and as this effect is to be determined by a construction of the statutes under which an appeal is taken, the decisions in other states upon statutes differing from our own are not entitled to a controlling consideration.” Under the facts admitted herein it is perfectly clear that certain provisions of the statute authorize the court below to make an order to permit plaintiff, the said railroad company, to take possession of and use the said property during the pendency of the litigation. Section 1254 of the Code of Civil Procedure provides that “At any time after trial and judgment entered or pending an appeal from the judgment to the supreme court, whenever the plaintiff shall have paid into court, for the defendant, the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceeding, as well as all damages that may be sustained by the defendant if for any cause the property shall not be finally taken for public use; the superior court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may if necessary stay all actions and proceedings against the plaintiff on account thereof.” Section 1257, following, is another special provision in reference to condemnation proceedings, and it makes applicable to said proceedings the general provisions of part 2 of the Code of Civil Procedure, relative to new trials and appeals, except as they are inconsistent with the provisions of

In Spring Valley W. W. v. Drinkhouse, 95 Cal. 220 , [ 30 Pac. 218 ], after judgment and pending an appeal, plaintiff took possession of the property by virtue of said section 1254, and in discussing that provision the supreme court said: "The final conclusion of this litigation has not yet been reached, and if said section of the code is not in conflict with the constitution of the state, then this proceeding must fail, for the order of the trial court is still in full force and effect. This section is not in violation of any provision of the constitution, but directly in line with that instrument wherein it treats of such matters. ... It would seem that the framers of both the constitution and the statute had in view the delays incident to condemnation proceedings, and the necessity in many eases of allowing property to be taken and used for a public use during the progress of the litigation, provided an adequate fund to fully reimburse the land owner was first paid into court.” So in Heilbron v. Superior Court, 151 Cal. 275 , [ 90 Pac. 707 ], in refutation of petitioners’ argument that in no conceivable instance can a plaintiff in condemnation have a right of entry upon the condemned property until the

The other consideration to be noticed in this connection grows out of the contention of petitioners that this section has been repealed by implication by virtue of the amendment of section 949 by the legislature of 1905, [Stats. 1905, p. 22], To state the proposition in the language of petitioners : “Section 949, Code of Civil Procedure, therefore, being general in terms and upon its face providing for a stay of proceedings in all cases not expressly exempt from its operation, and said section being the latest expression of the will of the legislature, should control section 1254, Code of Civil Procedure. Section 949 expressly specifies cases where the appeal does not stay execution. In 1905, as stated, the legislature enacted this section, but did not include among the exceptions therein specified condemnation proceedings. It is well settled that a revised or amended act must be construed as a new and original piece of legislation. (Donlan v. Jewett, 88 Cal. 530 , [ 26 Pac. 370 ].) ” It is believed, however, that respondent is wholly right in the contention that petitioners have thus furnished a striking example of non sequitur. It is well illustrated by respondent as follows: “At the time of the amendment to 1254, in 1903, section 949 read the same as it reads now, except that • in 1905 another exception was added, namely, that relating to a judgment giving a stockholder or director the right to inspect the records of a corporation. In other words, the contention of counsel amounts to this: the title on eminent domain provided that an appeal should not stay proceedings in the court below; the general section upon

We do not understand that the cases cited by petitioners are necessarily inconsistent with this position.

In Estate of McGee, 154 Cal. 24 , [ 97 Pac. 299 ], the two sections of the statute under consideration related to the same special subject, that is, the devoluti'on of the title to the homestead premises in case of the death of one of the spouses, and it would seem that no doubt could exist as to the soundness of the decision that the later enactment, being irreconcilable with the earlier, must be recognized as the law upon the subject. The case, however, was decided upon the ground that the question had been settled by the decision in Weinreich v. Hensley, 121 Cal. 647 , [ 54 Pac. 254 ], and Estate of Fath, 132 Cal. 609 , [ 64 Pac. 995 ], the court stating, through Mr. Justice Sloss: “It must be taken to be settled that the two code sections cannot be harmonized, and that as between them, effect is to be given to the later enactment.”

In Kennedy v. Board of Education, 82 Cal. 492 , [ 22 Pac. 1045 ], it was held that the general statute applied to all cities. It would therefore necessarily follow that it controlled special statutes made applicable to particular cities. This ease followed People v. Henshaw, 76 Cal. 436 , [ 18 Pac. 413 ], wherein it was held that the act of March 18, 1885, entitled “An act to provide for police courts in cities having thirty thousand and under one hundred thousand inhabitants, and to provide for officers thereof,” repealed the act of March 10, 1866, establishing a police court in the city of Oakland, a city of a population between thirty and one hundred thousand inhabitants. The conclusion from the language used by the legislature was reasonable that the intent was to make the general statute applicable to all cities coming within its terms. It therefore became operative in the city of Oakland, and, while the supreme court properly said that “The law does not favor

The ease of City of Los Angeles v. Pomeroy, 132 Cal. 340 , [ 64 Pac. 477 ], apparently in line with the contention of petitioners, was decided March 25, 1901, while section 1254 contained the unconstitutional provision permitting plaintiff to take possession “at any time after the filing of the complaint, and the issuance and service of the summons thereon.” Attention is called to this fact in the opinion filed in the Simas case, supra, wherein it is said: “Since that decision was made, section 1254 of the Code of Civil Procedure has been so amended that as now in force it must be taken as creating an addition to the class of cases theretofore constituting exceptions to the general stay of proceedings provided for in section 946 of the Code of Civil Procedure.” It may be added that this latter decision, as well as that of the Heilbron case, supra, was rendered subsequent to the enactment of said section 949 as amended in 1905, although it does not appear that the attention of the reviewing court was called to the amendment. We are satisfied, however, that both eases were correctly decided, and that effect should be given to the said special as well as to the general provision.

As to the contention of petitioners in reference to the segregation of the amount found due the defendants, we think several answers may be made, as suggested by respondent.

In the first place, plaintiff is required by the statute to deposit the amount of the judgment, whatever that may be. Plaintiff is not commanded to make any division of the fund among claimants or to specify how much is deposited for any particular claimant. Nor is it material that the judgment may be informal or erroneous, as this is a consideration for appeal or motion for a new trial. It is manifest that the asserted infirmity as to the verdict is not a jurisdictional defect which invalidates the judgment, but at most an irregularity to be reviewed in the proper proceeding. If from the record the judgment appeared to be void, a different question, of course, would be presented, but that is not the incident ease.

Again, since it appears from the petition herein that the Reed Orchard Company was the owner of the condemned property and the value of said property was found by the jury, the presumption would be, in the absence of a contrary showing, that this was the value of the owner’s interest, and that the interest of the other defendants was of nominal or of no value. In this connection it is to be observed that the petition herein does not negative this presumption, since there is no allegation that the interest of either of the other defendants was of any value at the time the verdict was rendered. The situation here is analogous to that of Scheerer v. Hutton, 7 Cal. App. 527 , [ 94 Pac. 850 ], wherein it is said: “While it is true that the court did not make a finding as to the ownership of the leasehold, nor of its value, the intendments in favor of such judgment, however, lead to the conclusion that the court found as a question, of fact, either that the leasehold possessed no value, or that no leasehold interest was held by petitioner in said premises.” But the court goes on to say that: “Whatever may have been the finding of the court in that regard as to the questions of fact, if not warranted by the evidence, it would have been error only. Or assuming that petitioner was the owner of the leasehold and that it had some value, the legal conclusion of the court that petitioner was entitled to no part of the compensation would have been at most but an error at law; either of which errors could properly be reviewed upon appeal.” (See, also, In re Road in Kingston Township, 134 Pa. 409 , [ 19 Atl. 750 ]; Taintor v. Mayor of Cambridge, 197 Mass. 412 , [ 83 N.

In the case of Yellowstone Park R. R. Co. v. Badger Coal Co., 34 Mont. 545 , [ 115 Am. St. Rep. 546 , 9 Ann. Cas. 470, 87 Pac. 963 ], the supreme court of Montana discusses the question at length, reviewing the constitutional and statutory provisions, which are apparently similar to ours, and declares that, “Construing these provisions together, it is apparent that the defendant is required to appear and make his defense as in ordinary actions. And if he fails to appear and save default by one of the modes provided, he has no right to be heard in the subsequent proceedings. This is so notwithstanding the provisions of section 2221, which requires the commissioners appointed to assess the damages to hear the allegations and evidence of all persons interested. The latter provision certainly contemplates cases where the parties defendant are not in default, for if they must, notwithstanding their default, be heard by the commissioners, they may appeal (section 2224) and still have a jury trial as to the amount of damages—a situation which, in view of the provisions applicable to ordinary actions, would be absurd.” As suggested by respondent, this precise question as to the effect of the default of a defendant in a condemnation proceeding as to his subsequent conduct in the cause has not been determined in this state, yet it has been held that the burden of establishing value is upon the defendant and that he must allege and prove his damages. (Monterey County v. Cushing, 83 Cal. 509 , [ 23

In the Morenhout ease, supra, referring to the effect of a default, it is said: “To say that the judgment is not conclusive upon them because they neglected to appear and exhibit their interests is preposterous. Such a doctrine would place it in the power of an obstinate tenant to defeat and prevent a partition in all cases by merely staying out of court. They were made parties and had an opportunity to appear and take part in the proceedings. Their default was a confession that they had no interest in the land, and the court had jurisdiction to so adjudge expressly. But had it not done so, and passed them in silence, the result would have been the same, for a judgment that the land belonged to the parties between whom it was divided would have been equally as conclusive against their title, they having been made parties and served with process.”

Since there is no allegation to the contrary in the petition, we may assume, also, that no objection was made to the form of verdict rendered by the jury. It is true that the jury are

Section 619 of the Code of Civil Procedure provides that “When the verdict is announced, if it is informal or insufficient, in not covering the issues submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.” It is readily admitted that the verdict may be so defective as to be subject to subsequent attack, although no objection be made at the time it is rendered, but the situation here is of a very different nature. Upon this point respondent cites the following eases: Winans v. Christy, 4 Cal. 80 , [ 60 Am. Dec. 597 ]; Algier v. Steamer Maria, 14 Cal. 170 ; Campbell v. Jones, 41 Cal. 515 ; Pacific Coast Ry. Co. v. Porter, 74 Cal. 262 , [ 15 Pac. 774 ]; Big Lost River Irr. Co. v. Davidson, 21 Idaho, 160 , [ 121 Pac. 92 ]; Metropolitan etc. Ry. Co. v. Eschner, 232 Ill. 210 , [ 83 N. E. 809 ]; Golden Gate Mill Co. v. Joshua Hendy Machine Works, 82 Cal. 184 , [ 23 Pac. 45 ]; Ryan v. Fitzgerald, 87 Cal. 347 , [ 25 Pac. 546 ]; Johnson v. Visher, 96 Cal. 314 , [ 31 Pac. 106 ]; Southern Missouri v. Wyatt, 223 Mo. 347 , [ 122 S. W. 588 ].

In the Davidson case, supra, decided by the supreme court of Idaho, it seems that a reversal was sought because separate awards had not been made for several tracts of land, section 5220 of the Revised Codes of that state being the same as said section 1248 of the California Code of Civil Procedure. After stating that it' appeared that the several tracts were necessary for the intended use and that it would be presumed evidence

In the Johnson case, supra, the supreme court of this state said: “If the defendant was dissatisfied with the form of the verdict, he should have asked at the time it was announced that it be made formal and certain; otherwise it was the duty of the court to construe it so as to give it the effect intended by the jury, if the intended effect could be ascertained from its language, considered in connection with the pleadings and evidence; provided, however, that the intended effect was not unlawful and not irrelevant to the pleadings. (Truebody v. Jacobson, 2 Cal. 270 ; People v. McCarthy, 48 Cal. 557 ; People v. Perdue, 49 Cal. 425 .) And as a general rule, a party will not be heard to object to a verdict for the first time on appeal from the judgment, if it is susceptible of a construction which may have a lawful and relevant effect (Douglas v. Kraft, 9 Cal. 562 ), and this case does not appear to fall within any exception to the rule.”

It may be added that, upon the assumption that the defaulting defendants had some interest in the property that was and is of substantial value, it is a fair inference that its adjust

Again, as before seen, since there is no allegation that the lease is still in force, we may assume, as alleged in the answer of respondent, that by its terms it ceased to be operative on condemnation of the land, and it may for that reason be ignored as of no value. As for the deed of trust or mortgage, it may be inferred that the residue of the one hundred and forty acre tract is abundant security for the payment of whatever may be due the mortgagee. At any rate, under a long line of authorities, if there should be any necessity for it, the mortgagee may resort to the fund in the custody of the court to satisfy any deficiency.

In the Matter of Morris Avenue, 118 App. Div. 121 , [ 103 N. Y. Supp. 182 ], it is said: “The question as to the right to an award as between a mortgagee and the owner of the equity has arisen in several cases, and the rule seems to be well established that, where a mortgage has been given upon property prior to the taking of a portion thereof by the city, if upon a foreclosure and sale after the taking by the city the amount realized is insufficient to meet the mortgage debt, the lien of the mortgage would extend to and embrace so much of the damages as awarded as should be needed to make good the deficiency. In the Matter of the City of Rochester, 136 N. Y. 83 , [ 19 L. R. A. 161 , 32 N. E. 102 ], where title to a part of certain mortgaged premises was subsequently foreclosed and the land sold by the original description, leaving a deficiency, the court said: ‘The balance of the land only could be sold and conveyed on the foreclosure. The referee’s deed could convey, and did convey, only that balance, and the right of the mortgagee became merely an equitable lien on the fund

The foregoing eonsiderations, in the main, probably would be more apposite to a motion for a new trial or an appeal from the order denying it or from the judgment, but it is conceived that they are also of importance in the determination of the character of the judgment, a question necessarily involved in the application before us.

Petitioners attach much importance to the case of Butte County v. Boydston, 64 Cal. 110 , [ 29 Pac. 511 ], but it is to be observed that the decision therein was rendered on appeal from the judgment and order refusing a new trial, and no question was raised as to conflicting claimants to the fund. There was a failure to find the several elements of damage as required by the statute, and it was properly held that “the judgment is erroneous and must be reversed.”

Some other points are discussed by counsel, but it is believed that sufficient consideration has been devoted to the subject, and that no reasonable doubt exists that under the law respondent can be justified in taking the contemplated action. The demurrer is therefore sustained and the order to show cause discharged.

Hart, J., and Chipman, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 6, 1912, and the following opinion then rendered thereon:

The petition that the application in the above-entitled matter for a supersedeas, originally heard and determined in the court of appeals, be given a hearing in this court is denied. This denial, however, is not’ to be construed as an affirmance of the views expressed by the court of appeals as to the scope of the writ of supersedeas and the circumstances under which such a writ will be issued. The power to issue such a writ is one of the inherent powers of a court of appeals, to be exercised in any proper case when it appears necessary so to do to preserve the rights of a litigant until final determination of his appeal. (Rogers v. Superior Court, 158 Cal. 467 , [ 111 Pac. 357 ].)

Chief Justice Beatty and Justice Sloss, deeming themselves disqualified, do not participate in the foregoing.