W. Jay Saylor, Ltd. v. Superior Court

CONREY, P. J.

An appeal from a judgment or order directing the payment of money does not stay execution of the judgment or order unless a written undertaking be executed as required by section 942 of the Code of Civil Procedure. By section 954 of the Code of Civil Procedure it is further provided that “when it is made to appear to the satisfaction of the court or a judge thereof, from which the appeal was taken, that a surety or sureties upon an appeal bond from any cause has or have become insufficient, and the bond or undertaking inadequate as security for the payment of the judgment appealed from”, the court may order the giving of a new bond, etc. An appeal may be taken from a superior court, from a final judgment in an action, and from various orders specified in section 963 of the Code of Civil Procedure, including “any special order made after final judgment”. It is further provided by section 949 of the Code of Civil Procedure that in cases not provided for in sections 942, 943, 944 and 945, the perfecting of an appeal stays proceedings in the court below upon the judgment or order appealed from; subject to certain discretionary powers and exceptional conditions which are without application to the present proceeding.

[187]

The petitioner herein was plaintiff in an action in the superior court against one Farmer. A money judgment was entered in favor of the plaintiff. The defendant appealed therefrom and caused to be filed an undertaking to stay execution of the judgment. A corporation known as Benjamin Franklin Bond

&

Indemnity Corporation was sole surety on the undertaking. Thereafter such proceedings were had that the superior court found and determined that the surety had become insufficient, whereupon it was ordered that the defendant be required to file a new undertaking. From this order the defendant gave notice of appeal without filing any further stay bond. Thereupon the superior court made an

ex parte

order that execution “upon the aforesaid order and judgment is hereby stayed”, and the execution which the clerk had issued upon the judgment was recalled. Pursuant to notice duly given, the plaintiff made the appropriate motion for an order for the issuance of a new execution unless the defendant should forthwith file a new stay bond. This motion was denied, and the clerk also has refused to issue the demanded execution.