Fisher v. District Court of Fourth Judicial District

• Decision Date: 30 January 1894
• Docket Number: Civil 419
• Citation: 4 Ariz. 254,36 P. 176
• Parties: J. J. FISHER, Complainant, v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, TERRITORY OF ARIZONA, IN AND FOR YAVAPAI COUNTY, Respondent
• Court: Arizona Supreme Court

36 P. 176

4 Ariz. 254

J. J. FISHER, Complainant, v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, TERRITORY OF ARIZONA, IN AND FOR YAVAPAI COUNTY, Respondent

Civil No. 419

Supreme Court of Arizona

January 30, 1894

ORIGINAL PETITION for Writ of Certiorari.

Granted.

Baldwin & Johnson, for Appellant.

Herndon & Norris, for Appellee.

Sloan J. Baker, C. J., and Rouse, J., concur.

OPINION

The facts are stated in the opinion.

SLOAN J.--

On the application of J. J. Fisher, this court issued a writ of certiorari directed to the district court, fourth judicial district, in and for Yavapai County, commanding the latter to certify up the proceedings had subsequent to judgment in the case of Santa Fe, Prescott, and Phoenix Railway Company, plaintiff, v. J. J. Fisher, John Martin, J. W. Dougherty, R. M. Ling, and Levi Bashford, defendants. The record, as certified in return of the writ, shows that the plaintiff in the above-entitled case brought suit in said court for the condemnation of a right of way for its railroad across certain mining claims owned by the said defendants as tenants in common. Upon the trial, the damages, as assessed by the jury, exclusive of the cost of fences and cattle-guards as found, were $ 1,820.85. Judgment was entered in accordance with the finding of the jury. The plaintiff appealed from the judgment to this court, which appeal is still pending. After judgment the plaintiff gave bond under the statutes for double the amount of the assessed cost of constructing the fences and cattle-guards, and paid into court the amount found as compensation,--viz., $ 1,820.85,--together with a further sum, to cover costs and further damages should any afterwards be found, and obtained an order from the court letting it into possession of the land condemned in the suit. Thereupon the defendants filed their receipt for the $ 1,820.85, together with a written abandonment of all defenses to the action except as to the amount of damages that they might be found to be entitled to in the event that a new trial should be granted, and applied to the court for an order directing that the $ 1,820.85 be paid over to them. The court denied this application, and directed that the money remain in the hands of the clerk pending the appeal.

It is provided in section 18 of the Eminent Domain Act (Rev. Stats. par. 1778) that "at any time after trial and judgment entered, or pending an appeal from the judgment of 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 proceedings, 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, ...