Chicago, Milwaukee & St. Paul Ry. Co. v. Trueman

AILSHIE, J. A motion has been made to strike out certain portions of the transcript and motion has also been made to dismiss the appeal. We have examined these motions and have reached the conclusion that they are not well taken. The motions are denied. This is an appeal from a final decree of condemnation and an order denying a motion to. vacate and annul the decree. On the 24th day of January, 1908, the appellant company filed its complaint in the district court in and for Kootenai county, praying the condemnation of the south thirty feet of lot 10, block 1, in the townsite of St. Maries, for railroad purposes. Summons was issued and served, and at the same time notice was served on the defendants, who are respondents here, that the plaintiffs would apply to the court for the appointment of commissioners to assess and determine the damages that defendants would sustain by reason of the condemnation of the land described in the complaint. Commissioners were thereafter duly appointed, and after a hearing at which plaintiffs and defendants were represented and introduced proofs, the commissioners made and filed their findings and report. They found the value of the land sought to be con [692] demned to be $1,200, and that the damages that would accrue to the balance of the lot, buildings and improvements thereon, by reason of the condemnation would amount to $5,000. On May 11th following the plaintiff company filed with the clerk of the court its praecipe for the dismissal of the proceedings. Notice of this praecipe was served on the attorney for the defendants. No further action was taken in the matter until about September 21, 1909, when a notice of motion for judgment against the plaintiff was served on J. L. McClear, the local attorney at Coeur d ’Aleñe city for the railroad company. This notice was forwarded by Mr. McClear to the general counsel at Spokane, and in the course of business was delayed and overlooked, and so no appearance was made on the day set for hearing, which was September 29th. On the latter date the motion was called up by the defendants, and on their application a final decree of condemnation was ordered upon the report of the commissioners, and thereafter and on October 9th a judgment was entered against the company for the amount of the award and a final decree of condemnation was entered. On October 15th the plaintiff moved for a vacation and annulment of the judgment and decree on several grounds, among which was: First, that the court was without jurisdiction to enter the judgment and decree; second, that the action had been dismissed long prior to the entry of judgment and decree. The first question presented by the appellant deserving our consideration here is, that it had an absolute right, under sec. 4354 of the Rev. Codes, to dismiss the action. That section provides as follows: “An "action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself, at any time before trial, upon the payment of costs: Provided, a counterclaim has not been made or affirmative relief sought by the cross-complaint or answer of defendant. If a provisional remedy has been allowed the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon.” [693] Sec. 5228, Rev. Codes, which is a part of the title on eminent domain provides as follows: “Except as otherwise provided in this title, the provisions of this code relative to civil actions and new trials and appeals, are applicable to, and constitute, the rules of practice in the proceedings in this title.” It will be' observed that this latter section makes the provisions of the code relative to civil actions applicable, “except as otherwise provided in this title,” to proceedings in condemnation. Now, in civil actions, under sec. 4354, supra, the plaintiff may dismiss, upon payment of costs, at any time before trial, provided a counterclaim has not been made or affirmative relief sought. No counterclaim had been filed and no affirmative relief had been sought in this case, and we are clearly of the opinion that the plaintiff had a right to dismiss. (Hancock Ditch Co. v. Bradford, 13 Cal. 637; Hopkins v. Superior Court, 136 Cal. 552, 69 Pac. 299.) So far as the record shows in this case no dismissal was ever entered. The statute, however, sec. 4354, provides that “the dismissal mentioned in the first two subdivisions” of this statute “is made by an entry in the clerk’s register.” It does not appear from the transcript that any entry of the dismissal has either been made in the clerk’s register or any formal judgment has heen entered. The failure to make such entry would not affect the plaintiff’s right to have the action or proceeding dismissed. It has been argued by the respondent, however, that the appellant was not entitled to the dismissal because he did not pay the costs, while it is urged by the appellant that there were no costs to pay. In the absence of a positive showing to the contrary, we assume that the plaintiff when applying to the clerk for a dismissal of the action paid the costs of the dismissal. Under the construction placed on the California statute, from which our section 4354 was taken, it has been held unnecessary for a plaintiff making a dismissal under subd. 1 of this statute to, at the time, actually pay more than the costs of the dismissal and that the other costs follow the dismissal as a matter of law and must be taxed in the ordinary way, and that it was the intention of the statute that [694] when ascertained, they should be entered as a judgment against the plaintiff. (Hancock Ditch Co. v. Bradford, 13 Cal. 637; Hopkins v. Superior Court, 136 Cal. 552, 69 Pac. 299.) But appellant contends that in a proceeding for condemnation no costs are taxable at all. To this contention we cannot give our assent. Appellant’s contention seems to us contrary to both the letter and the spirit of the statute. By the provisions of sec. 5227, costs in eminent domain cases “may be allowed or not, and if allowed may be apportioned between the parties, on the same or adverse sides, in the discretion of the court.” This provision of the statute was evidently written with a view that the case would go to final judgment after a regmlar trial had. It would clearly be an abuse of the discretion of the trial court, under this statute, to refuse to allow a defendant costs where the plaintiff had procured the appointment of commissioners and had a hearing, entailed all the costs incident to the production of witnesses and attendance on the meeting of the commissioners, and then had dismissed the action as was attempted to be done in this case. Where the action is dismissed under these conditions, it would clearly be the duty of the trial court to tax the costs against the plaintiff, and the provisions of see. 5228 making applicable the general statutes relative to civil actions would apply in the taxing of costs. The usual cost's in civil actions would be taxable. It would be necessary for the defendants to file a cost bill within five days after notice of the dismissal, as provided by sec. 4912, Rev. Codes. From what has already been said it follows that the court erred in entering a decree of condemnation and a judgment on the findings and report of the commissioners. The plaintiff had already complied with the statute in order to entitle it to a dismissal of the proceeding. It would also follow from the holding of this court in Pyle v. Woods, ante, p. 674, 111 Pac. 746, decided at this present term, that the court would have had no authority to enter a judgment over the objection of plaintiff on the findings of the commissioners. The condemning company was not obliged to pay the award made by the commissioners, and even though it did not desire [695] -to dismiss the proceeding it would still have had a right to apply to the court for a jury trial to assess the damages. The judgment and order appealed from are reversed, and the cause is remanded with direction to the trial court to dismiss the action. Costs of this appeal are awarded in favor of appellant. Sullivan, C. J., concurs.