Bartlett

Appeal by plaintiff from an order setting aside a judgment in condemnation, and allowing attorney’s fees.

Plaintiff obtained a condemnation judgment which provided that upon payment of $4,500 to defendant owners, the plaintiff should become the owner of the land. Upon defendants’ appeal therefrom, the judgment was affirmed, and the remittitur was filed in the superior court on July 16,1962.

On September 18, 1962, the plaintiff deposited the amount of the award in the superior court. On September 24, 1962, one of the attorneys representing plaintiff filed an affidavit, in support of plaintiff’s application for a final order of condemnation, wherein it was stated that the sums awarded in the judgment of condemnation had been paid into court for the benefit of the owners. A final order of condemnation was made (ex parte) on said September 24, entered on September 26, 1962, and recorded on October 3, 1962.

On October 9, 1962, the defendants (owners) filed a notice of motion for an order setting aside and annulling the judgment theretofore entered and restoring possession of the property to the defendants. The notice stated that the motion would be made upon the ground that the…