Curley v. Superior Court

DRAPER, P. J.

This proceeding in prohibition tests the validity of an order of the trial court staying execution.

The two petitioners, as plaintiffs, had judgment for $5,000 each against all defendants. All defendants appealed, but none then filed stay bond. Plaintiffs thereafter secured issuance of writ of execution, and under it levied upon bank accounts of one defendant in San Francisco and of other defendants in Alameda County. The Alameda bank paid the amount it held to the sheriff. The San Francisco bank has not yet paid, but concededly holds an account in excess of $10,000. In our view of the law, the fact that one sheriff physically held the funds, while the other did not, is immaterial. Upon application of the several judgment debtors, and after hearing, the trial court granted defendants leave to file bonds, and directed that upon such filing further proceedings under the writ of execution be stayed and that the two sheriffs release the levies theretofore made. Bonds were filed promptly. Upon application of plaintiff petitioners, we granted alternative writ of prohibition.

[371]

Petitioners argue that once the levies were made, the trial court lost jurisdiction to stay or release. They contend that when money is paid to a sheriff under writ of execution it becomes the property of the judgment creditor and not of the debtor

(Del Riccio

v.

Superior Court,

115 Cal.App.2d 29 [251 P.2d 678]). But

Del Riccio

holds only that the court lacks power to stay, in such circumstances, “in the absence of statutory authority. ’ ’ In that case, no appeal had been taken, and the stay could be justified only under Code of Civil Procedure section 681a, which did not authorize release from levies already made.

In our case, appeal has been taken and a wholly different statute applies. While an appeal does not stay execution unless undertaking is filed (Code Civ. Proc., § 942), “ [w]henever an appeal is perfected,” a stay does result (Code Civ. Proc., § 946). An appeal is perfected, within the meaning of this section, when a stay bond is filed