Lapique v. Kelley

CONREY, P. J.

On application for writ of supersedeas. In this action

to

quiet title to certain real property, the court-entered its decree against the plaintiff and at the same time

[6]

granted relief on a cross-complaint and thereby quieted title to said premises in favor of cross-complainant, “The Re-Organized Church of Jesus Christ of Latter Day Saints,” a corporation. The plaintiff Lapique has appealed from the judgment and now applies for a writ of

supersedeas

to be directed to the respondents, and that certain of the respondents be required to surrender possession of the premises to the plaintiff and appellant. The petition shows by the facts alleged therein that, since the appeal was instituted, a certain “Farmer’s Gun Club” has taken possession of the premises under a purported lease from one McGuire, which lease also was executed after this appeal was instituted. The decree in this action determined that said McGuire, sued personally, has no title or interest in said premises, but the court’s findings state that he is the presiding bishop of said church.

Assuming that under a decree quieting title as provided in the terms of the decree in this ease, the prevailing party might obtain possession through a writ of assistance or other process of the court; and further assuming that

supersedeas,

directed to the trial court, would be a proper remedy to prevent that court from issuing any such process and from thereby taking possession of the property from the appellant during the time while the appeal is pending; nevertheless it is clear upon the showing made by appellant himself in his petition that he stands in no danger of being deprived of possession through the issuance of any process of the court in aid of the respondents or either of them.

Archer

v.

Miller,

192 Cal. 67 [218 Pac. 410], much relied upon by petitioner, has no application to the situation presented in this case. In