against her by default. A receiver duly appointed under an order of the court, was instructed to take into his custody the mortgaged chattels, and thereupon he made demand upon petitioner that she deliver to him two pairs of andirons, which were included in the mortgage, with which demand so made she refused to comply. Thereupon the receiver procured from the court an order citing petitioner to appear in court at a time therein specified and show cause why she should not be punished for contempt for such disobedience. This order was not served upon petitioner, but upon one J. S. Josselyn, Esquire, who, though he was not her attorney of record, nevertheless accepted service thereof in her behalf. It may be conceded, as claimed by petitioner, that the purported acceptance of service of the order by this attorney, who, so far as shown by the record, was at the time a stranger thereto, was a nullity and constituted no sufficient basis for the contempt proceeding instituted thereby. Nevertheless, petitioner, in obedience to the order requir ing her so to do, did appear, and admitting she then had possession of the andirons, was in open court by the judge thereof ordered to deliver the andircns to the receiver by six o'clock p. m. of that day, which order was entered of record. Apparently the court did not proceed with contempt proceedings founded upon the first order based upon an affidavit showing that petitioner had refused to deliver the articles upon the receiver's demand so orally made. That proceeding may be deemed to have been abandoned. It is the second order made in open court, petitioner being present, whereby she was ordered to deliver the property to the receiver, the failure to comply with which may or may not, upon a proper showing, constitute a basis for contempt proceedings. So far as right to possession of the property is concerned, petitioner had her day in court as a party to the foreclosure action, wherein it was adjudged that the articles in her possession were covered by and subject to the mortgage; and unless she has subsequently to the rendition of the judgment therein and with consent of the plaintiff in foreclosure, acquired some right or title to the property from the owners thereof, it is her duty to deliver the same to the receiver in obedience to the order. If she has thus acquired title to the property, a showing of such fact upon citation in contempt proceedings based upon her refusal to comply with the order, would no doubt, be deemed sufficient to purge her of such alleged contempt. [1] Upon the record presented, we perceive no reason why the court should be prohibited from enforcing obedience to the order.

The alternative writ heretofore issued is dismissed and the application of petitioner denied.

We concur:

SHAW, J.

CONREY, P. J.
JAMES, J.

Civil No. 1414. Third Appellate District. October 21, 1915. COLUSA & HAMILTON RAILROAD COMPANY (a Corporation), Plaintiff and Petitioner, v. CHARLES H. GLENN, Defendant and Respondent.

[1] EMINENT DOMAIN-JUDGMENT FOR DAMAGES-APPEAL-SUPERSEDEAS. The plaintiff in an action in eminent domain upon taking an appeal from the judgment assessing the damages is not entitled as a matter of right to a writ of supersedeas restraining the superior court from issuing an execution on the judgment pending the appeal, where there has been no abandonment of the proceedings and exercise of the option not to take the land within thirty days after the judgment, nor bond staying execution given.

[2] ID. PAYMENT OF DAMAGES-TIME CONSTRUCTION OF CODE— "FINAL JUDGMENT."-The "final judgment" mentioned in section 1251 of the Code of Civil Procedure relating to the time of payment of the sum of money assessed as damages in eminent domain proceedings is the "final judgment" from which an appeal may be taken and not the final determination of the appeal in the appellate courts.

For Petitioner-Frank Freeman, Geo. R. Freeman.

For Respondent-Charles L. Donahoe, W. T. Belieu.
Writ of supersedeas.

The petition is for a writ of supersedeas and the essential facts are as follows: Petitioner is a railroad corporation and as such it brought against defendant in the superior court of Glenn county a suit in eminent domain to secure a right of way over his land. A trial was had with the assistance of a jury, on the 26th day of April, 1915. The jury brought in a verdict awarding plaintiff and petitioner the 12.18 acres sought to be condemned, fixing the value of said land at the sum of $2,801.40 and assessing the damages to that portion of the land of defendant not taken, by reason of severance, at the sum of $14,130.00, making a total of $16,931.40 damages. Thereafter, on June 2, 1915, the Hon. Wm. M. Finch, judge of said superior court, made and entered a judgment on said verdict containing the usual formal recitals and also certain stipulations of the parties as to how the road should be constructed and adopting the verdict of the jury as to the value of the land and the damages to the remaining portion and fixing it at said sum, and concluding as follows: "It is further ordered, adjudged and decreed that upon the payment of the said sum of $2,801.40 and the said sum of $14,130.00, to-wit, the sum of $16,931.40 assessed, the plaintiff shall be entitled to a final order of condemnation, which shall describe the property condemned and the purpose of such condemnation, which property shall be as described in the complaint herein and which purpose shall be as stated in the complaint herein, and that said railroad on said right of way shall be constructed in the manner provided in this decree and the said property hereinafter described is hereby taken as a public use for the purposes described and set forth in the complaint, reference to which is hereby made, upon the said payment of the said total sum being made", followed On the 11th day of June by a description of the land condemned. following the plaintiff filed with the clerk of said court a notice of appeal to the supreme court and, on the 16th day of June, said plaintiff filed a proper undertaking for costs on appeal in the sum

of one hundred dollars; "that notwithstanding the said perfecting of said appeal to the supreme court . . . defendant has applied to the superior court of the state of California in and for the county of Glenn and the Honorable Wm. M. Finch, Judge of said court, for an order directing and compelling the clerk of said superior court to issue an execution in said action on said judgment for the said sum of $16,931.40 and costs of suit and the said superior court and the said judge thereof has entertained said motion and said application and threatens to grant the same and order said clerk of said court to issue said execution to the end that it may be levied upon the property of your petitioner, the plaintiff in above entitled action, and the said defendant is not entitled to such order or such execution and your petitioner is entitled to a writ of supersedeas for the reason that the appeal taken from said judgment has suspended said judgment and the jurisdiction of said superior court . . . and said judgment has by reason of said appeal been stayed until after the final determination of said appeal. . . . That your petitioner, the plaintiff in above entitled action, has not taken possession of the land involved in said action or any portion thereof, and has not made and is not now making any attempt to take possession of said land, or otherwise or at all."

The nature of the judgment for damages is the subject of controversy between counsel, and there is also a difference of opinion as to the time within which plaintiff may abandon the proceedings. In section 785 (3rd ed.) of Lewis on Eminent Domain, it is said: "Some cases hold that it is proper to render a personal judgment upon the verdict of a jury in condemnation cases, and to award execution, the same as in common law suits. If the statute is so far silent upon the subject as to leave the matter open for judicial construction, then the proper judgment to be entered will depend upon the following considerations: If possession has already been taken of the property, either by consent or otherwise, or if the property has already been taken by virtue of an instrument of appropriation, as it may be in some states, before the compensation is paid, then a personal judgment with all its incidents may properly be entered. But if the property has not been entered upon and cannot be until compensation is made, and the effect of the proceedings is to fix a price at which the petitioner can take the property if it elects so to do, then a personal judgment is improper and should not be entered", and in section 955 the learned author says: "The weight of authority undoubtedly is that in the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that even after confirmation or judg ment the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded." A large number of cases bearing upon the text is reviewed and an extended quotation made from the opinion of Chief Justice Beasley of the court of errors and appeals of New Jersey, in the case of O'Neill v. Freeholders of Hudson, 41 N. J. L. 161, concluding with the declaration that the legal effect of the proceedings for condemnation "should be held to be that they compel the land owner to offer the public

the required land at the ascertained price, and that, when such price has been finally ascertained, the public has a reasonable time within which to make an election either to accept or reject the offer."

In this state the matter seems to be the subject of express statutory regulation. Section 1251 of the Code of Civil Procedure provides: "The plaintiff must, within thirty days after final judgment, pay the sum of money assessed," and section 1252 provides that "Payment may be made to the defendants entitled thereto or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money cannot be made on execution, the court, upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if possession has been taken by the plaintiff."

In connection with the foregoing must be considered section 942 of said code, that "If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order", etc. Since no such undertaking was given and said application for execution was made after the expiration of thirty days from the entry of said judgment of June 2, it seems plain that the whole question revolves around the significance of the expression "after final judgment". It is the contention of petitioner that this means "after the judgment has become final", which cannot antedate the final determination of the appeal in the appellate courts. Its position is, therefore, that such option to take the land may be exercised and execution cannot be issued until thirty days have expired after said judgment so becomes final. [2] The position is not without reason in its support but the question seems tc have been decided adversely to petitioner's contention.

In California Southern Railroad Company v. Southern Pacific Railroad Company, 67 Cal. 59, it is said: "The judgment based in part on the assessment of damages and adjudicating that the use is public and the taking necessary is the 'final judgment' from which an appeal may be taken. The money assessed must be paid within 'thirty days after' that 'final judgment'. (Code Civ. Proc., sec. 1251.) It may, as suggested, be an inaccurate use of the term to designate as final the judgment which the court may set aside (with all the proceedings on which it is based) if the sum assessed is not paid. And ordinarily a judgment is not final when the law contemplates further and subsequent proceedings in the same court to precede the absolute determination of the rights of the parties. But the question is not what is or is not a final judgment within the appropriate meaning of the terms, but what is intended to be designated as the final judgment in the title treating of eminent domain."

In Lincoln Northern Ry. Co. v. Wiswell, 8 Cal. App. 578, the question was whether the plaintiff could, within thirty days after the entry of judgment on the verdict, abandon the route set out

in the complaint and, in holding that it had such privilege, it was said: "The final judgment mentioned in section 1251, as to pay. ment of which reference is made in section 1252, is the judgment fixing the amount of damages, and is a final judgment in the proceeding and is an appealable judgment (California Southern R. R. Co. v. Southern Pacific R. R. Co., 67 Cal. 59 [7 Pac. 123]); the subsequent final order of condemnation (sec. 1253) being an order after final judgment."

The statutes of Idaho on eminent domain, as to the question involved herein, seem to be identical with ours and the matter before us was squarely decided in Big Lost River Irrigation Company v. Davidson, 121 Pac. 88. Quoting from the syllabus: "Under the provisions of section 5223 of the Revised Codes, the plaintiff is required to pay the final judgment entered for damages assessed under the provisions of section 5220 within thirty days after such judgment is entered", and "By the provisions of section 5224 of the Revised Codes, payment of the judgment entered under the provisions of section 5223 may be made or deposited in court, and, if not so paid or deposited, an execution may issue as in civil cases." In the opinion it is said: "The statute does not provide the form of judgment to be entered for the damages fixed and assessed by either the court, jury, or referee, under the provisions of section 5220; but under that section of the statute there could be but one form of judgment, and that would be a common, ordinary form of judgment for the recovery of money, the amount determined by the court, jury, or referee, and is the final judgment mentioned in section 5223 of the Revised Codes, and is a judgment in personam against the plaintiff, and upon which an execution may issue as provided by section 5224 of the statute. . . . After a final judgment has been entered the plaintiff has thirty days within which to pay the same, and if payment is not made then execution may issue, as in civil cases. (Glenn County v. Johnston, 129 Cal. 404, 62 Pac. 66; County of Madera v. Raymond G. Co., 139 Cal. 128, 72 Pac. 915.) . . There would be no reason for the provisions found in section 5224, providing for an execution, if there was to be no judgment entered for the damages assessed, either by the court, jury, or referee. The very fact that an execution is authorized to be issued presupposes and presumes that an entry of a personal judgment for the damages assessed will be entered, upon which such execution is to be issued."

In Union Ry. Co. v. Standard Wheel Co., 149 Fed. 698, the question involved was whether, after judgment assessing damages, plaintiff or petitioner was authorized to dismiss the proceedings as to a portion of the land sought to be condemned merely because in its opinion the damages assessed were too high and in holding to the contrary, the court said: "When a party undertakes to subject another's property to his own use, he must be deemed to be willing and intend to pay a fair price for it, and that such fair price shall be fixed by the verdict of a jury to be approved by the court. Good faith requires that he shall not use the power of the court to vex the other party with successive experiments in the effort to get what he wants at his own price,