Cla Vell v. Cochran

ARCHBALD, J., pro tem. Defendants have appealed on the judgment-roll from a judgment against them in plaintiff’s favor. The complaint alleges that the action is brought on a promissory note in the sum of $2,250, executed by the defendants in favor of plaintiff, no part of which has been paid. The answer admits such allegations, and sets up as a defense that plaintiff was a surety on a supersedeas bond given to stay execution of the sentence of two years’ imprisonment and $5,000 fine imposed upon one Rush Meadows after conviction in the District Court of the United States for the Southern District of California and pending review of said judgment by the United States Circuit Court of Appeals for the Ninth Circuit (Meadows v. United States, 11 Fed. (2d) 718) ; that after said judgment was affirmed said Meadows applied to the trial court for an additional stay of execution of thirty days, which the court refused to grant except upon immediate payment of the $5,000 fine; that defendants contributed $1400, and various other sums were contributed by other friends and relatives, including the plaintiff, Cla Vell; that after said sum of $5,000 had been raised and the fine paid, plaintiff demanded that she be secured for her contribution, and that defendants, in order to appease the ravings of said Cla Veil, executed the promissory note which is the subject of this action, to repay to plaintiff the amount she had theretofore paid on her own obligation.

With regard to said defense the court found that Meadows was found guilty and sentence imposed as alleged; that plaintiff was related by marriage to Meadows, and that on July 30, 1925, the latter, as principal, and Mrs. Cla Vell, with two other sureties, “executed a supersedeas bond in said proceeding in favor of the United States of America in the penal sum of $25,000”, with the following condition: “ . . . that if the said Rush Meadows shall appear in per[662]son in the United States Circuit Court of Appeals for the Ninth Circuit on such day or days as may be appointed for the hearing .of said cause in said court, and prosecute his writ of error,. and shall abide by and obey all orders made by the United States Circuit Court of Appeals for the Ninth Circuit in said cause, and shall pay any fine and costs imposed by the judgment of the District Court against him, and shall surrender himself in execution of the judgment and sentence appealed from as said court may direct, if the judgment and sentence against him shall be affirmed or the writ of error or appeal is dismissed, and if he shall appear for trial in the District Court of the United States for the Southern District of California, Southern Division, on such day or days as may be appointed for a retrial by said District Court and abide by and obey all orders of said court provided 'the judgment and sentence against him shall be reversed by the United States Circuit Court of Appeals for the Ninth Circuit, then the above obligation to be void; otherwise to remain in full force and effect. ’ ’ The court further found that said Meadows perfected his appeal and that on Novémber 3, 1926, said United States Circuit Court of Appeals affirmed the judgment of the trial court theretofore rendered against him; “that at and prior to the time that said conviction . . . was affirmed said defendants and the said Rush Meadow's were interested in obtaining the rights to certain mica claims in the state of New Mexico, and that at the time that said conviction of said Rush Meadows was affirmed the said Rush Meadows was assisting the said defendants in obtaining an interest in said mica claims; that upon said conviction being affirmed as aforesaid, it was necessary that the said Rush Meadows produce himself at once and be delivered into custody, and it wrns the desire of the defendants, and each of them, that said Rush Meadows be granted a stay of execution for a period of thirty days or more to enable him to consummate a transfer of an interest in said mica claims to the said defendants, and to enable him to obtain the assistance of one Walter A. Jones and his mother and one Mrs. Derenia in defendant’s business”; that before said stay .would be granted by said court it “was ordered and required by the Honorable Edward J. Henning, judge of said court, that