Port Angeles Pacific Railroad v. Cooke

Citations

• 38 Wash. 184
• 80 P. 305
• 1905 Wash. LEXIS 1143

Syllabus

<p>Appeal and Error—Decision—Recall of Remittitur—Diligence. The supreme court has power to recall its remittitur and. correct a judgment entered by inadvertence or mistake, and a motion filed for that purpose December 27, to correct a remittitur sent down November 2, is made with due diligence.</p> <p>Eminent Domain—Electing to Abandon Proceedings—Liability for Damages Awarded. Where the petitioner in condemnation proceedings has not taken possession of the land, it may elect to abandon the proceedings and is not liable for the damages awarded.</p> <p>Same—Decision on Appeal—Affirmance of Award—Recalling Remittitur—Abandonment of Proceedings After Appeal. Upon dismissing an appeal from an award of damages in condemnation proceedings, for want of prosecution, judgment of affirmance for the amount of the award should not be 'ordered against the' petitioner and its surety on the appeal bond, where the petitioner has not taken possession of the condemned property, and the record fails to show any decree of appropriation; and, upon.a showing that the petitioner elects to abandon the condemnation, the supreme court will'recall its remittitur and correct a judgment entered for the award, and limit the same to the costs of the appeal.</p> <p>Same—Bond on Appeal—Presumption as to Abandonment. Upon an appeal from an award of damages in condemnation proceedings, where there was no decree of appropriation, the appeal bond under Bal. Code, § 5646, is necessary to perfect the appeal, and does not assume that the petitioner desires to proceed with the condemnation, nor preclude the abandonment thereof.</p>