Jennings v. Ward

DOOLING, J.,

pro

tem.

Plaintiff and appellant Aleta Jennings recovered judgment for $30,000 and costs for personal injuries caused by the operation of a certain automobile against defendants Ward and Sweeney. An appeal was taken from such judgment and is now pending and no stay bond was furnished on such appeal.

[537]

Appellant Jennings caused execution to be issued against Ward and Sweeney, which was returned unsatisfied. Thereafter by supplementary proceedings pursuant to Code of Civil Procedure, sections 71A-722, respondent Standard Accident Insurance Company of Detroit, Michigan, was ordered to appear for examination as an alleged debtor of defendants Ward and Sweeney. Upon such examination it appeared that respondent had issued a policy covering the defendants in the operation of the automobile in question insuring them against “the loss from the liability imposed by law upon the assured for damages on account of bodily injuries, . . . sustained or alleged to have been sustained by any person” by reason of the operation of such automobile. The limit of liability for injury to one person was stated to be $10,000. A motion that respondent be compelled to pay appellant the amount provided in the policy in

pro tanto

satisfaction of her judgment, was denied and from such order of denial this appeal is prosecuted.

The policy in condition “E” thereof provides: “No action shall lie against the company to recover upon any claim or for any loss under this policy unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by final judgment against the Assured after trial of the issue, or by agreement between the parties with the written consent of the company, nor in any event unless brought within two years thereafter.”

It is the settled rule in California, although the weight of authority in other jurisdictions is to the contrary, that a judgment is not final so long as an appeal is pending therefrom, even though a

supersedeas

bond has not been furnished. (15 Cal. Jur., article on Judgments, sec. 182, p. 121 et seq., sec. 259, pp. 260, 261;