City of Los Angeles v. Hannon , 79 Cal. App. 669 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff and respondent instituted this action in eminent domain on June 10, 1915, to condemn lands of the defendants for the purpose of opening and widening Long Beach Avenue, in the City of Los Angeles. Referees appointed by the superior court filed their report on June 18, 1918, awarding to the appellant the sum of $6,805.20 and $15 costs. To such report appellant filed exceptions, and a hearing before the court below was had on July 20, 1919, on which date the trial court ordered judgment in favor of Catherine Hannon in the sum of $9,640.70 for the land sought to be taken, $4,295.72 as compensation for consequent damages to other property, and costs. No further steps were taken until February 27, 1924, or about four years and seven months after the date on which the court had fixed the valuation. On the date last mentioned an interlocutory judgment, providing for the payment to appellant of the amounts so determined on July 20, 1919, was signed, and it was entered on March 10, 1924. In said judgment it was recited that the exceptions of the defendant Catherine Hannon to the report of the referees were well taken, and should be sustained in part; that the report should be so modified "that the total compensation proper to be paid to the defendant Catherine Hannon as the owner of said parcel of land is the sum of $13,951.42, instead of the sum of $6,820.20, the amount awarded by the referees as total compensation proper to be paid to said defendants."

Appellant moved for a new trial upon grounds 3, 4, 6 and 7 of section 657 of the Code of Civil Procedure. The notice of intention to move for a new trial was accompanied by affidavits of real estate experts which tended to show that the value of the property had greatly increased since the trial of the issues presented by the pleadings. The trial court denied the motion, stating that it so ruled "for the reason that the grounds on which the motion is really based are not, in my judgment, cognizable by the court in passing on this motion."

It is urged that by the delay in entering judgment the respondent must be held to have abandoned the proceedings, and forfeited its right to the property, and that the trial court lost jurisdiction of the case. The appellant invokes the provisions of section 632 of the Code of Civil Procedure, which provides that the decision of the court when a case is tried without a jury "must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision." It is contended that the rendition and filing of the decree herein was, after such delay, not only in contravention of said section, but in violation of article I, section 14, of the constitution, which latter forbids the taking of property without just compensation.

[1] The law is established in this state that a minute order for judgment is not a judgment. (Canadian American Mtg. Trust Co. v. Clarita Land Investment Co., 140 Cal. 672 [74 P. 301]; Cuneo v. Cuneo, 40 Cal.App. 564 [181 P. 229];United Tax Payers' Co. v. San Francisco, 55 Cal.App. 239 [203 P. 120]; McKannay v. McKannay, 68 Cal.App. 709 [230 P. 218]; Prothero v. Superior Court, 196 Cal. 439 [238 P. 357].) Hence, appellant was afforded no opportunity for an appeal until four and one-half years after the date of trial (Code Civ. Proc., sec. 664), unless prompted to move the court below or to take other proper steps to procure an earlier filing and entry of the judgment.

Appellant does not complain that error was committed during the trial, nor in fixing the amount of the award. It is urged that since the property was to all intents and purposes in custodialegis, appellant could not convey, encumber, or lease it for a term; that she was compelled to sit by and see it quadruple in value, and was burdened with a corresponding increase in taxes, though precluded from improving the premises for the purpose of increasing their revenue. It is further insisted that although appellant was permitted to retain possession and a limited use of the property, yet the title was suspended by the delay in entering judgment, thus enabling the plaintiff to elect, at its option, to dismiss its action or to accept the property at any time without payment of interest upon the amount adjudicated.

Respondent ignores this point, and confines its argument principally to the proposition that a new trial was properly denied. [2] It has been decided that a delay in filing findings and judgment is not one of the grounds for a new trial under section 657 of the Code of Civil Procedure. (Kepfler v.Kepfler, 134 Cal. 205 [66 P. 208].) But this is not, nor could it be, an appeal from the order denying a new trial. It is taken from the judgment, which, if by reason of the delay, the trial court lost jurisdiction to enter, would require a reversal.

[3] Prior to its amendment in 1874 section 632 of the Code of Civil Procedure required that decisions be filed within twenty days after submission of the causes, and provided that "unless the decision is filed within that time the action must again be tried." The section, as amended, extended the time to thirty days, omitting the penalty, and has ever since been held merely directory. In so holding it has repeatedly been said that the validity of a judgment subsequently entered is not affected by failure to comply with the statute. (Oakland First Nat. Bank v.Wolff, 79 Cal. 69 [21 P. 551, 748]; Heinlen v. Phillips,88 Cal. 557 [26 P. 366]; Rosenthal v. McMann, 93 Cal. 505 [29 P. 121]; Marshall v. Taylor, 97 Cal. 422 [32 P. 515];Edwards v. Hellings, 103 Cal. 204 [37 P. 218]; Neihaus v.Morgan, 5 Cal. Unrep. 391 [45 P. 255]; Churchill v.Louis, 135 Cal. 608 [67 P. 1052]; Hutchinson v. Marshall,49 Cal.App. 307 [193 P. 164]; McLennan v. Bank ofCalifornia, 87 Cal. 569 [25 P. 760].)

Nor can it be successfully contended that the trial court lost jurisdiction through procrastination during which there was no objection made nor action taken by either party. In Brady v.Burke, 90 Cal. 1 [27 P. 52], the cause was tried in 1878, and judgment was ordered; an appeal was taken, although the judgment was not entered until 1882, which latter fact was not called to the attention of the supreme court; when the remittitur was returned, execution issued, and the property involved was sold. Upon a second appeal it was contended that the superior court had lost jurisdiction of the case, and that the judgment entered four years after the date of trial, and the execution, were void. In affirming the judgment it was said: "Until the judgment is entered, such court retains complete jurisdiction of the case, of which it cannot be divested by any unauthorized appeal to this court. . . . It follows that the superior court had jurisdiction to enter the judgment of January 7, 1882, and that the execution sale thereunder, under which plaintiff purchased, was not void."

In other jurisdictions having similar statutes limiting the time within which decision must be filed and entered, the rulings have been the same in this respect. In Toole v. Weirick,39 Mont. 359 [133 Am. St. Rep. 576, 102 P. 590], the following language was used: "If Mrs. Myers had desired action upon the matter at an earlier date, this court was open to her to apply for a writ of mandate to compel the district court to decide the case. California and Utah each has a statute similar to our section 6763 [Mont. Rev. Codes] above, and in each state it has been held that the statute is directory, and the failure of the court to render its decision within the time limited does not deprive the court of jurisdiction to decide it at a later date . . ."

In Lynch v. Coviglio, 17 Utah, 106 [53 P. 983], it was observed that the statute under consideration was a verbatim copy of section 632 of the Code of Civil Procedure of California. The court there said: "A court, therefore, trying a case without a jury, has jurisdiction to file its findings of fact, conclusions of law, and decision after the expiration of the time designated by the statute."

To the same effect are Rawson v. Parsons, 6 Mich. 401;McCray v. Humes, 116 Ind. 103 [18 N.E. 500]; Vogle v.Grace, 5 Minn. 294 (Gil. 232); People v. Dodge, 5 How. Pr. (N.Y.) 47; McCrady v. Jones, 36 S.C. 136 [15 S.E. 430];Body v. Jewsen, 33 Wis. 402; Cramer v. Hanaford,53 Wis. 85 [10 N.W. 15].

Appellant relies upon the reasoning employed in Bensley v.Mountain Lake Water Co., 13 Cal. 306 [73 Am. Dec. 575], which is claimed to be particularly applicable here. We are unable to discover any principle there stated which can be said to apply to this proceeding, except in the ruling that a plaintiff in a condemnation suit must comply with the terms of the statute, and that it will not be permitted to acquire title or possession under a void judgment. In the cited case the commissioners' report was filed August 23, 1853; on December 17th of the same year the plaintiff withdrew its deposits and collateral security, and the court made a minute order dismissing the action; on December 25, 1856, three years after dismissal, the plaintiff procured an order confirming the report of the commissioners, and on June 29, 1857, a final order for judgment condemning the property and directing that the water company be let into possession was made without notice to the owner of the premises. In 1859 the latter filed a petition reciting that the company was threatening to and would, unless enjoined, take possession, excavate, build embankments, and divert valuable waters of springs and streams. A decree of injunction was granted, which was affirmed upon appeal. No municipal corporation was involved, objection was not made to the commissioners' report, the defendant was given no opportunity to be heard, nor was the appeal taken from the judgment itself. We need not pause to conjecture as to what might have been the reasoning of the supreme court had there been no dismissal and withdrawal of the deposit, and had the judgment, though delayed, been regular in other respects. Since the decision itself has no bearing upon the issues here presented, we must be governed by the rule established by authorities in point, wherein courts of last resort have spoken uniformly.

[4] This condemnation proceeding was instituted under the statutes of 1911, as amended, which contain provisions not enacted at the time of the rendition of the decisions inBensley v. Mountain etc. Co., supra. Section 1255a of the Code of Civil Procedure contains a definite provision concerning the method by which condemnation proceedings once instituted may be abandoned. It reads as follows: "Abandonment of Condemnation Proceedings. Plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendant and filing in court a written notice of such abandonment; and failure to comply with section one thousand two hundred and fifty-one of this code shall constitute an implied abandonment of the proceedings. Upon such abandonment, express or implied, on motion of defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred . . ."

Apparently it was the intention of the legislature that an abandonment might be implied from "failure to comply with section 1251 of this code." It is not contended in the instant case that there had been an express abandonment or a failure to comply with any of the provisions of said section 1251 Since the legislature saw fit to make express provision for the manner in which an implied abandonment might take place, under the maxim expressiounius est exclusio alterius, the mere delay on the part of the parties in a condemnation suit to take one of the necessary steps, which delay does not constitute a violation of the designated section, cannot be said to constitute an implied abandonment. (Lewis' Sutherland on Statutory Construction, 2d ed., secs. 627-633, and cases cited.)

It may also be observed that in that part of the statute above quoted under which this action is maintained provision is made for the dismissal of the proceeding where an abandonment, express or implied, has occurred, upon motion of the defendant. If in this case she had desired the return of her property, in addition to the remedies which are mentioned elsewhere in this opinion, if an abandonment had actually taken place, she had no need to wait for the court to render its decree, but might at any time have availed herself of the right to move to dismiss. At any rate, the fact that she possessed this as well as other remedies removes in a large measure the force of the claim that a hardship has been worked by reason of the fact that the price of the property condemned has greatly enhanced in value since the filing of the suit. However, if in fact it may have decreased in value, the city, in acquiring the property, would still be bound to pay the amount originally allowed.

[5] Much stress is laid upon provisions of the constitution relating to just compensation and upon "the Supreme Court's views on fair dealing in eminent domain cases." However, from the views expressed herein it becomes apparent that neither the question of adequacy of the award nor that of expediency in such cases can arise. This being an appeal from the judgment, to which no objection is raised, and the court below having had jurisdiction to enter it, an affirmance is the logical and legal result.

The judgment is affirmed.

Works, P.J., concurred.