Patterson v. Pacific Indemnity Co.

CRAIG, J.

An undertaking releasing an attachment levied by the respondent having been furnished by the appellant, the instant suit was based thereon, where the surety affirmatively alleged by answer that “immediately after the issuance of the execution in said action, said [defendant] duly filed and served' therein its notice of appeal in said action and filed the undertaking therein within the time prescribed by law by good and sufficient surety in double the amount named in said judgment conditioned as prescribed by law, staying execution of said judgment pending and undetermined and said judgment and execution thereof has been duly stayed pending the determination of said appeal”.

[205]

Judgment in favor of the plaintiff in this action was rendered upon the pleadings, and the respondent herein contends in support of such judgment that the matters so alleged were insufficient to preclude recovery of the amount of the first judgment, notwithstanding the pendency of the appeal.

Sections 942 and 946, respectively, of the Code of Civil Procedure, provide, in part:

“If the appeal be from a judgment or order directing the payment of money,- it does not stay the execution of judgment or order unless a written undertaking be executed on the part of the appellant, by.two or more sureties, to the effect that they are bound in double the amount named in the judgment or order.”

“Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such

judgment;

provided, however, said property shall not be released from the levy, if the respondent excepts to the sufficiency of the sureties within five days after the giving of the undertaking staying execution until such sureties, or others, justify in the manner prescribed by law.”

The complaint alleged that execution issued; and than on the following day the same was returned unsatisfied. As alleged by the defendant and appellant, immediately after the issuance of the execution it appealed and filed an undertaking within the time prescribed by law in double the amount of the judgment, and that execution was stayed pending appeal. It is not suggested that an exception to the surety suspended release of the levy of execution. Inapt as the failure of more specific detail may render the defendant’s answer, it cannot be said that the allegations do not furnish complete bar to satisfaction of the writ or grounds for its return unsatisfied. An appeal does not stay execution unless a written undertaking' be executed in accordance with the foregoing sections prescribing its form and substance and the time within which it shall be furnished. In order to stay execution an appellant is required to perfect its appeal as provided by the