Kim v. Chinn

CARTER, J.

Defendant Chinn, petitioner herein, has applied for a writ of supersedeas to stay the execution of a judgment against him pending an appeal therefrom. The judgment was entered in the Superior Court of Santa Cruz County on April 18, 1941, for the sum of $8,500 and costs. A motion for a new trial was denied on June 12, 1941. Defendant filed a notice of appeal on July 10, 1941.

In all of the above-mentioned proceedings petitioner was represented by his counsel of record, Mr. Stanford G. Smith, who then advised petitioner that he desired to withdraw from the ease and refused to take any further proceedings thereafter. He signed a substitution of attorneys between July 21 and July 26, 1941.

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On July 26, 1941, petitioner by and through Mr. Hudson, an attorney at law, caused to be filed in the superior court in said action, an undertaking in the sum of $17,600 to stay execution on the judgment pending appeal; the sureties were personal. Petitioner was ill at the time but went to San-Francisco to obtain an attorney to be substituted in the place of Mr. Smith, and in the latter part of July, 1941, made a tentative arrangement with Mr. Bianchi, an attorney in San Francisco, to “prosecute the case on appeal when, as and if the record on appeal was perfected”; Mr. Bianchi signed the substitution of attorneys on September 15, 1941, and sent it to Mr. Smith. It was filed on September 19, 1941. Petitioner became so ill on August 14, 1941, that he was, and at all times since has been, confined in a sanatorium. On August 15, 1941, Mr. Bianchi was injured, necessitating his absence from his office until September 10, 1941. Plaintiff excepted to the sufficiency of the sureties on the undertaking on August 18, 1941, notice thereof being mailed to Mr. Bianchi’s office and to Mr. Smith. Mr. Bianchi, not having signed the substitution of attorneys, and he being ill, his office took steps by which petitioner’s wife received the notice. She delivered it to Mr. Hudson for attention, who filed notice that the sureties would justify on August 29, 1941, at which time one of the sureties, Silliman, failed to justify and Mr. Hudson informed petitioner’s wife that she would have to secure a new surety. Plaintiff asserts that the court stated at that time, in the hearing of petitioner’s wife, that only eight days remained in which to obtain proper sureties. A new undertaking was filed in the trial court on September 2, 1941. Neither petitioner nor his wife were ever advised by anyone or knew until September 10, 1941, that it was necessary under the law to have other sureties in court to justify within the time limit in the event of the failure of the sureties to which exception was taken to qualify. Mr. Hudson acted gratuitously and as an accommodation in the matter of the undertaking, and believed that the filing of the second undertaking was all that was required upon the failure of one of the sureties on the first undertaking to qualify, and did not know of any objection upon plaintiff’s part to the sureties on the second undertaking until plaintiff’s exception thereto on September 10, 1941, at which time it was too late for the sureties to justify. (Sec. 948, Code of Civil Procedure.)