Isaak v. Evidon

FRAMPTON, J. pro tem.

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Petitioner seeks to restrain plaintiff and cross-defendants from enforcing the judgment below pending disposition of his appeal therefrom upon condition that within 30 days from date of notice of order granting supersedeas he will either justify his undertaking on appeal, make cash deposit or file a corporate undertaking in the manner prescribed by law.

Petitioner is the defendant and cross-complainant in an action in the superior court in which a judgment in favor of plaintiff was rendered against him on September 14, 1961, in the sum of $15,000 with interest from February 5, 1960. There was also a judgment for costs in favor of the cross-defendants on the cross-complaint.

Petitioner filed a notice of appeal from the judgment and has taken appropriate steps to perfect his appeal. On September 28, 1961, to stay execution, he filed an undertaking on appeal and affidavit of surety pursuant to the provisions of sections 942 and 1057 of the Code of Civil Procedure, wherein petitioner and his two sureties bound themselves to plaintiff in the sum of $30,000. On October 2, 1961, plaintiff excepted to the sufficiency of the sureties and required justification or a corporate surety bond in lieu thereof. The hearing on the matter of the justification of the sureties was set, on petitioner’s motion, for October 20, 1961. At the conclusion of the hearing plaintiff excepted to the sufficiency of the surety, William Evidon, upon the grounds that most of the property of said surety was held in joint tenancy with his wife and the

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wife had not joined in the undertaking. The court granted such exception. On October 23, 1961, petitioner filed an undertaking and affidavit of surety in which the wife of William Evidon joined, which supplied the deficiency upon which the exception was taken. On October 26, 1961, plaintiff filed a notice of motion as follows:

“You AND EACH OP YOU WILL PLEASE TAKE NOTICE that the plaintiff above named will move the above entitled court in Department 66 thereof on November 1, 1961 at the hour of 9 :00 a. m., or as soon thereafter as counsel may be heard, for its order striking from the files the alleged and purported undertaking on appeal purportedly executed on October 23, 1961 and will further move said court for its order directing the Clerk of the Court to issue a writ of execution on the judgment heretofore entered in the above entitled cause on the ground that the sureties on said undertaking on appeal did not justify in the manner and within the time provided for by Section 948 of the Code of Civil Procedure of the State of California. Said motion will be made upon the grounds that this court lost jurisdiction over the filing of the undertaking on appeal on October 23, 1961.