Yee Kee Chong v. Pacific Freight Lines

PEEK, J.

This opinion is in accordance with the order of this court made and entered at the conclusion of the hearing on defendants’ petition for a writ of supersedeas to stay proceedings pending an appeal from an order of the trial court denying defendants’ motion for a change of venue and plaintiff’s motion to dismiss said appeal.

The record in regard to the petition for a writ of supersedeas discloses that defendants’ motion for a change of venue was denied on August 10, 1945, and on the same day the case was set down for trial for October 10, 1945. Prior to said date of trial, defendants made application to the court for a continuance, and the cause was continued to October 29, 1945. Fifty-nine days after the order denying defendants’ motion for a change of venue, notice of appeal was filed and the same is now pending. On October 29, 1945, the action, which is for damages for breach of contract for the safe carriage of property to its destination in Sonoma County, went on regularly for trial. At the conclusion of plaintiff’s case defendants contended that they were not fully prepared to try said action and requested an extension of time within which to present evidence in support of their general denial. Thereupon counsel for plaintiff stipulated that defendants could have such time as the court would allow for the submission of any defense they might have to the action. The matter was then continued to December 3, 1945. The present petition was filed on October 29th and noticed for hearing on November 26th.

It is the settled law of this state that the granting or denial of a petition for a writ of supersedeas in such a case

[221]

is a matter of discretion (Code Civ. Proc., § 949;

Bardwell

v.

Turner,

219 Cal. 228, 229 [25 P.2d 978] ;

Kane

v.

Universal Film Exchanges,

32 Cal.App.2d 365, 367 [89 P.2d 693, 91 P.2d 577];