Gutierrez

In an eminent domain proceeding may a condemnee prosecute a motion for a new trial after having applied for and received payment of the full amount due her under the judgment, filed her receipt and abandonment of defenses, excepting her claim for greater compensation, where the eondemner has neither demanded nor taken any procedure to gain possession of the property?

This is the basic issue presented in this appeal from the order granting a new trial to defendant Mary A. Gutierrez. After a jury trial in Santa Barbara County judgment was ordered condemning to the plaintiff certain parcels of property in which defendant Gutierrez personally and as executrix of the estate of Maria Simas Alvarnaz had an interest upon the payment into court for the benefit of all interested defendants of the total sum of $49,422. The judgment apportioned that award among the interested defendants, decreeing that $34,771 might be withdrawn by or on behalf of defendant Gutierrez, the balance to go to the parties not involved in this appeal.

On the day that the judgment in condemnation was entered plaintiff deposited the full amount of the judgment award with the clerk and procured the final order of…