Armstrong v. Sacramento Valley Realty Co.

THE COURT.

This is an application for a writ of

supersedeas

to prevent plaintiff from talcing any proceeding in the superior court of Glenn County in execution of a. certain judgment rendered therein in favor of plaintiff and against the defendants.

The record shows that on the fourteenth day of July, 1919, a certain paper in said action, signed by the judge, was filed;

[2]

the defendants presuming it to be a final judgment in the case, took an appeal therefrom to the supreme court of the state, and filed a bond in an amount sufficient to stay proceedings ; thereafter, on the twenty-second day of September, 1919, the judge who tried said case signed and filed another paper purporting to be a final judgment in said action; from this action the defendants have also appealed and given a bond in the sum of three hundred dollars, but no bond to stay execution.

The petitioners for the writ herein allege that the plaintiff is threatening to, and will, unless restrained, proceed by execution to enforce the alleged judgment filed on September 22, 1919; they also allege that the first judgment filed in said action was a final judgment and that the second document was a nullity, that the only judgment in the case that has any validity is the first document- filed in said action, and that plaintiff should not be permitted to enforce said purported final judgment filed in said action on the ground that the same is a nullity.

[1]

We are of the opinion that the petitioner’s application for a writ should be made to the court wherein such appeal is pending and not to this court. For this reason, we deem it unnecessary to discuss the merits of the application or determine the effect of the pa-per filed on September 22, 1919, as being a judgment in the case.

In the case of

Southern Pacific Co.

v.

Superior Court,

167 Cal. 252, [139 Pac. 70], the supreme court said: “The power to issue a writ of