Wilkman v. Banks

THE COURT.

Defendants have petitioned for a writ of supersedeas under rule 49, Rules on Appeal (36 Cal.2d 37) to stay proceedings under an adverse judgment, pending determination of their appeal therefrom. The action filed in the superior court, being case 602619, alleged violation by defendants of certain deed restrictions of record by maintaining and operating a sanitarium on defendants’ property, and prayed for a prohibitory injunction. Defendants interposed equitable defenses of changed conditions in the neighborhood, excessive and disproportionate hardship on defendants, and laches. Judgment was rendered for plaintiffs and was entered on May 26, 1953, enjoining defendants from conducting or permitting others to conduct a hospital or

[523]

sanitarium on the property described. Notice of appeal was filed July 23, 1953. No opposition to defendants’ petition for a writ of supersedeas has been presented to this court by their adversaries, the plaintiffs in the case.

A prohibitory injunction is self-executing and its operation is not stayed by the appeal. This court has inherent power to issue a writ of supersedeas if such action is necessary or proper to the complete exercise of its appellate jurisdiction

(Rubin

v.

American Sportsmen etc. Soc.,

102 Cal.App.2d 288 [227 P.2d 303].) The test of whether appellate jurisdiction will be safeguarded is based upon a consideration of the respective rights of the litigants, which contemplates the possibility of affirmance as well as of reversal.

(Board of Dental Examiners

v.

Jameson,

23 Cal.2d 689, 690 [145 P.2d 905].) The purpose of the writ of supersedeas is to maintain the subject of the action

in statu quo

until the final determination of the appeal, in order that the appellant may not lose the fruits of a meritorious appeal.