Olsen v. W. H. Birch & Co.

COOPER, J.

Plaintiff recovered a judgment of foreclosure and sale against defendants, W. H. Birch & Co. and the Yukon and Northwestern Dredging and Transportation Company, as owners of the steamship City of Dawson for the foreclosure of certain liens against the said vessel, under the provisions of chapter 6, sections 813 et. seq., of the Code of Civil Procedure, relating to actions against steamers, vessels, and boats.

The defendants appealed from the judgment and decree so made, and gave an undertaking, with appellants as sureties, in double the amount of the judgment, for the purpose of staying execution thereon. The judgment was affirmed on appeal (133 Cal. 479,

1

[65 Pac. 1032]), and upon filing the

remittitur

in the court below, on motion of counsel for plaintiff, judgment was ordered and entered without notice against the'appellants as sureties on said undertaking for the amount of the judgment with interest and costs. From this judgment this appeal is taken.

The sole question is as to whether there was any consideration for said undertaking. If there was no consideration the sureties are not liable, and the judgment must be reversed.

[101]

In the judgment of foreclosure, which was the subject of the former appeal, it was decreed that plaintiff have judgment against the Yukon and Northwestern Dredging and Transportation Company for the sum of three hundred and eighty dollars, besides interest and costs, which judgment provided “that the steamship City of Dawson, her engines and boilers, tackle, apparel, and furniture are liable for the payment of said sums, and it is further ordered that the sheriff of the city and county of San Francisco, state of California, be and he is hereby ordered and directed to sell the said steamer, her said engines and boilers, tackle, apparel, and furniture in the manner provided by law, and out of the proceeds arising from such sale he retain his fees, disbursements and commissions,” and pay to plaintiff the amount so found to be due him, with costs.

The contention of plaintiff is, that this judgment is one which “directs the payment of money” within the meaning of section 942 of the Code of Civil Procedure, and that there should have been given, and the undertaking was given, m twice the amount of the judgment, and stayed the execution of the judgment pending the appeal.