Stewart v. Whitmyre

STONE, J. pro tem.

*

Appellant sold real property to respondents, reserving title to a building alleged to be worth $25,000 located on one of the lots. A controversy arose over appellant’s right to move the building to an adjacent lot owned by her. Respondents contended that the agreement by which the lots were sold required appellant to move the building to another locality. An action ensued and judgment was entered confirming appellant’s title to the building, but forbidding her to move it onto her adjacent property. To implement the judgment, the court subsequently ordered appellant to move the building from the lot sold to respondents within 10 days. Appellant filed notice of appeal and during a conference among the court and counsel for both parties concerning the removal order, served an undertaking on appeal on the judge and a copy on respondents’ counsel. During the discussion counsel for respondents stated that he objected to the sureties on the appeal bond. The judge then advised both counsel that he would consider the matter and give a decision on the sufficiency of the sureties in the near future. The meeting in chambers occurred late Friday afternoon; on the following Monday respondents, without waiting for a ruling on the sufficiency of the sureties, demolished appellant’s building. Appellant then abandoned her appeal and filed this action for damages for destruction of her building and of other personal property. Respondents moved for summary judgment and affidavits in support of, and in opposition

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to, the motion were duly filed. The motion was granted, judgment was entered, and this appeal followed.

The crux of respondents’ motion was that “. . . the structures referred to in the Complaint herein were destroyed by defendant subsequent to the time granted to plaintiff for removal of said structures; that plaintiff made no effort to comply with the Judgment of the Court or the Order of the Court in said Action No. 76630.” Had these allegations told the complete story, respondents would have been entitled to the summary judgment granted. The motion, however, completely ignores the vital fact brought out by the affidavit filed on appellant’s behalf, that after judgment but before destruction of the building appellant filed notice of appeal and an appeal bond. Filing the bond automatically stayed further proceedings until the appeal was terminated. (Code Civ. Proc., §§ 946, 948, 949;