In section 785 (third edition) of Lewis on Eminent Domain, it is said as to the character of the judgment: "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 the 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 same 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 judgment 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 that they compel the landowner 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." Judge Beasley's language applies to the situation here. Until thirty days after "final judgment,' such election may be exercised, and until the expiration of said period the judgment does not operate as conclusive evidence of an unconditional or absolute obligation to pay the amount assessed. It would seem, therefore, that until said period had expired, it could not be regarded as a "personal

judgment" with all its incidents. It is at least clear that at the time said appeal was taken no execution could issue on said judgment, and it could be regarded as simply "fixing the price at which the condemning party could take the land."

We proceed to other citations. In California Southern R. R. Co. v. Southern Pac. R. R. Co., 67 Cal. 59, [7 Pac. 123], it is said: "The judgment based in part on the assessment of damages, and adjudicating that the use is public, and the taking necessary, etc., is the 'final judgment' from which an appeal may be taken. The sum of money assessed must be paid within thirty days after 'final judgment.' (Code Civ. Proc., sec. 1251.) It may, as suggested, be an inaccurate use of terms to designate as final a judgment, which the court may set aside (with all the proceedings on which it is based) if the sum of money assessed is not paid. (Code Civ. Proc., sec. 1252.) 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, [97 Pac. 536], 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, the court said: "The final judgment mentioned in section 1251, as to payment 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 Pac. 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 seem to be the same as ours, and in Big Lost River Irr. Co. v. Davidson, 21 Idaho, 160, [121 Pac. 88], 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, [79 C. C. A. 386], 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. And the public has an interest in the finality of the judgment. It will endure one litigation between parties, but not a repetition of it, to give one of them a chance to get a better result." And as to the judgment fixing the price to be paid for the land, it was declared that the jury was to assess the damages and the court to render judgment and: "The defendant is bound by it, and so is the petitioner; on principle as we think, but also by force of the statute.' Drath v. Burlington etc. R. R. Co., 15 Neb. 367, [18 N W. 717], and Neal v. Pittsburgh etc. R. R. Co., 31 Pa. St. 19, declare a similar doctrine.

81 Cal. App.-48

However, it may be permissible to notice these cases a little more specifically.

In the first, the Southern Pacific Railroad Company, one of the defendants, appealed from the preliminary order, and also from the final order of condemnation, and the real question presented as far as the judgment is concerned was whether the preliminary order or the final order of condemnation was the judgment from which the appeal should be taken. The supreme court held that the preliminary order of condemnation "is the 'final judgment' from which an appeal may be taken," and dismissed the appeal from the final order of condemnation because not taken within sixty days. The question of what is contemplated by "final judgment" as referred to in the first clause of said section 1251, or when the money must be paid, was not discussed in the briefs and had no bearing upon the disputed points involved in the appeal.

In the Lincoln Northern Railway Co. case, supra, the court on motion of plaintiff dismissed the proceeding within thirty days after the preliminary order of condemnation and the defendant appealed from that order. It is apparent that under any possible construction of said section 1251, plaintiff was not required to deposit the money before the expiration of thirty days from the preliminary order of condemnation. Hence, it could not be said that plaintiff was in default, or that it did not have the right to abandon the proceedings, whether "after final judgment" as used in said section 1251, has the meaning attributed to it by petitioner or by respond

ent.

In the Idaho case "the only issue presented by the pleadings" as stated by the court, "was the value of the land to be taken. The right to take the land described in the complaint, and the necessity for such taking, is admitted by the answer and the description of the land as alleged in the complaint is also admitted by the answer, and the allegation in the answer as to the necessity for taking eighty additional acres is not denied or put in issue, and therefore must have been admitted by the appellant, leaving for determination the value of the land described in the pleadings as the only issue to be determined in said cause." The jury returned a verdict "for the defendants" and assessing "defendants' damages in the sum of $55,593." Whereupon the trial court, after reciting the formal and preliminary matters, entered

the following judgment: "Wherefore by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged, and decreed that the said defendants have and recover from said plaintiff the sum of $55,593 with interest thereon at the rate of seven per cent per annum from the date hereof until paid, etc." From that judgment an appeal was taken by plaintiff and the language hereinbefore quoted appears to have been used with reference to the contention of appellant: "That the court erred in entering an unconditional personal judgment against the appellant."

The question as to the import of the phrase, “final judgment," or when the money had to be paid, was not involved, but the court was called upon to determine the character of the judgment to be entered and it did hold that "a judgment in personam" was authorized, treating the amount of the award as damages. As to the Idaho case, it may also be said that the judgment in form created a present obligation for the immediate payment of a definite sum of money upon which an execution could issue. It was not conditional and tentative as in the case at bar.

Of the California cases cited in the Idaho decision, the first, Glenn County v. Johnston, 129 Cal. 404, [62 Pac. 66], involved a motion to dismiss a condemnation proceeding brought by Glenn County for the reason that more than thirty days had elapsed since the entry of the judgment, and payment had not been made to defendants. The court below denied the motion but the supreme court reversed it, thus virtually holding that "after final judgment" refers to the entry of the preliminary order of condemnation in the superior court. It may be admitted, as claimed by petitioner, that there was no discussion in the briefs as to what constituted the "final judgment" within the purview of said section, the principal subject of controversy being as to whether the sections in question applied to counties, but as stated, the point was necessarily involved in the decision. County of Madera v. Raymond G. Co., 138 Cal. 244, [71 Pac. 112], did not call for the determination of the question considered herein, although said first clause of said section 1251 was quoted in the opinion in connection with the discussion of the form of judgment required, the conclusion being reached that "even if the form of the judgment was not as it should be, defendant