Estate of Murphy

California Court of Appeal Apr 7, 1971 No. 28844Published

Before: Devine

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Holding. Code of Civil Procedure section 917.9 authorizes trial courts to require an undertaking as a condition for a stay of execution even when the judgment does not require performance by the appellant. However, an appellate court may exercise its discretion to issue a writ of supersedeas without bond when the potential hardship to the appellants from distribution outweighs the potential harm to the respondent.

Issues

Does Code of Civil Procedure section 917.9 authorize a trial court to require an undertaking for a stay of execution when the judgment does not require performance by the appellant?
May an appellate court issue a writ of supersedeas without bond despite the existence of a statutory remedy when unusual circumstances are present?

Disposition. granted

Quotations verified verbatim against the opinion

“section 917.9 is not merely a recodification of former section 949, but that the changes in language reflect a legislative intent to broaden the trial court's authority to require an undertaking as a condition for a stay.”

“we conclude, therefore, that the new statutory stay provisions, and in particular, section 917.9, authorize the trial court to impose an undertaking to protect the respondent from any loss of benefits during an appeal”

“we nevertheless believe that unusual circumstances are present in this case which warrant the exercise of our discretion as an appellate court to issue a writ of supersedeas despite the existence of a statutory remedy.”

16 Cal.App.3d 564 (1971) 94 Cal. Rptr. 141 Estate of JAMES T. MURPHY, Deceased.

WELLS FARGO BANK, Plaintiff and Respondent,

THOMAS K. BEARD et al., Defendants and Appellants.

Docket No. 28844. Court of Appeals of California, First District, Division Four.

April 7, 1971. [566] COUNSEL

Kimble, MacMichael & Jackson, Joseph C. Kimble, Jon Wallace Upton and A.M. Frad for Defendants and Appellants.

Rea, Frasse, Anastasi, Clarke & Lewis, Burnett, Burnett, Keough, Cali, Bishop & Baker, John M. Burnett, Hoge, Fenton, Jones & Appel and Charles H. Brock for Plaintiff and Respondent.

OPINION

DEVINE, P.J.

Appellants seek writ of supersedeas to stay execution of an order terminating and distributing the corpus of a $2 million testamentary trust, pending an appeal from the order. The trial court granted a stay on condition that appellants execute and file an undertaking of $175,000. Appellants contend that they are entitled to an automatic stay without an undertaking and that supersedeas should issue as a corrective measure. (Estate of Dabney, 37 Cal.2d 402, 408 [232 P.2d 481].) The issue before us is whether Code of Civil Procedure section 917.9[1] authorizes an undertaking as a condition for a stay when the judgment appealed from does not require performance by appellants.

The problem is to determine the intent of the Legislature in its 1968 recodification of statutory provisions for stays pending appeal, in which former sections 942-949a were replaced by present sections 916-923. (Stats. 1968, ch. 385, §§ 1-2, pp. 816-820.) Former section 949, the counterpart of present section 917.9, provided that except as provided in sections 942, 943, 944, and 945,[2] none of which is applicable here, "the perfecting of an appeal stays proceedings in the court below upon the judgment or order appealed from; but the court in its discretion may require an undertaking in an amount to be fixed by it conditioned for the performance of the judgment or order appealed from if the same is affirmed or the appeal is dismissed." It was held that the language "conditioned for the performance of the judgment" in section 949 meant that the trial court could require an undertaking only in cases where the appellant was adjudged to have money or other property in his possession belonging to the

Estate of Murphy

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OPINION

DEVINE, P.J.

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