Hulse v. Davis

THE COURT.

Application for a writ of

supersedeas.

The applicant herein instituted an action against the above-named respondents on July 19, 1915, in the superior court of the county of Los Angeles. Judgment was entered in said action in favor of the applicant on January 28, 1916. On May 10, 1916, execution issued upon said judgment and was thereafter returned partly satisfied. No further proceedings were had or taken in the action until September 3, 1926, at which time, on an

ex parte

motion of counsel for the applicant and apparently without prior notice thereof

[317]

having been given to the respondents, an order was made by the court below for the issuance of a second execution upon the judgment theretofore entered. Pursuant thereto a writ of execution was duly issued and levied. Thereafter, and on September 23, 1926, a temporary restraining order was entered by said court, on motion of the respondents, enjoining any further action or proceedings under and by virtue of said writ of execution. On October 5, 1926, the lower court made and entered an order vacating the prior order for the issuance of a writ of execution, recalling and quashing the writ issued pursuant thereto and denying further process of said court for the enforcement of the judgment. In accordance with this latter order the sheriff on October 9, 1926, released and discharged the property of respondents theretofore held

in custodia legis.

The applicant has appealed from the order quashing the writ of execution and pending the determination of said appeal a writ of

supersedeas

is sought “staying all proceedings in the above-entitled matter” and directing “that if the said sheriff has released from levy the property of the defendant ... to re-levy thereon and keep the same intact until the determination of this appeal.”

The respondents oppose the application on the ground that this is not a proper case for the issuance of a writ of