Hayward v. Superior Court

WORKS, P. J.

Petitioners were parties plaintiff in an action in respondent court. The action was commenced for the purpose of procuring judgment on a promissory

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note and for a decree of foreclosure of a pledge of corporate stock which had been placed with an escrow-holder as security for the payment of the paper. Judgment went for plaintiffs under both branches of the prayer of their complaint. Defendants appealed from the judgment and the appeal is yet pending. After it was. perfected, upon notice given, a motion was made in respondent court for an order directing and requiring that an undertaking in an amount to be fixed by the court be executed on the part of appellants, conditioned for the performance of the judgment if it should be affirmed or if the appeal should be dismissed. The motion was made on the ground that the collateral pledged as security for the payment of the note had become of little or no value, and the undertaking on appeal was demanded upon the theory that respondent court had authority to order it under the terms of section 949 of the Code of Civil Procedure. The hearing upon the motion was held by respondent court during four successive days. The court heard evidence from both sides as to the value of the collateral, necessarily considered the pleadings, findings and judgment in the case, and listened to argument upon the question whether, under the facts thus disclosed, it had power of authority, and, indeed, whether it had

jurisdiction,

to order the undertaking. The motion was submitted on the fourth day, and ten days thereafter the court made an order, according to its minutes, to the effect “that the motion for bond of plaintiffs ... be and hereby is denied”. The court also made a written order to the same effect. Pour- days after the entry of these orders respondent court made a further order, entitled “Order Nunc pro Tunc Correcting Clerical Misprision in Minute and Written Orders”, and by it changed the word “denied” in its first orders to the word “dismissed”.

Section 949 of the Code of Civil Procedure confers upon the superior court the right to exercise a discretion in determining, in cases to which the section applies, whether a stay bond on appeal shall be required. Petitioners came to this court for the writ of mandate upon the theory that respondent court had decided that it had no jurisdiction to order a stay bond and therefore that it had not exercised what counsel conceive to be the real jurisdiction conferred by section 949—that is, the court had not gotten so far