Boldemann Chocolate Co. v. Price

CURTIS, J.

Petition for writ of

supersedeas.

The action was brought to quiet title of plaintiff to a certain policy of insurance in the possession of The Bank of California National Association, and for the possession of" said policy. Judgment was rendered in favor of the plaintiff as prayed for and the defendants have appealed from said judgment. The policy had been introduced in evidence in the case and at the date of the judgment was in the custody of the clerk of the court. After judgment the court made its order directing the clerk to release said policy to the plaintiff upon the deposit by the plaintiff of a photostatic copy thereof. Before the order was complied with and while said policy of insurance was in the custody of the clerk of the court as aforesaid the defendants filed their notice of appeal and subsequently filed their petition herein praying for a writ of

supersedeas

directed to said court restraining it from proceeding with the execution of said judgment and of said order for the delivery of said policy of insurance to the plaintiff and that all proceedings upon said judgment and order be stayed until the final determination of said appeal. Upon the filing of said petition the court- issued an order to show cause why said writ should not issue, and ordered proceedings in said matter stayed until the final determination of this proceeding. As a result of said last-

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named order said policy of insurance is now in the custody of the clerk of said court.

Section 943 of the Code of Civil Procedure provides in part that, “If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order cannot be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court, or a judge thereof, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.”