Bryan v. Superior Court in and for of S.F.

MELVIN, J.

William V. Bryan has petitioned for

supersedeas

to stay execution on the judgment against him in Levey et al.

v.

Hockwald et ah, pending his appeal from an order denying his motion to set aside the said judgment.

[762]

n In his petition he alleges that he was one of the defendants in that certain action mentioned above, which was commenced in July, 1906, for the purpose of having a certain indenture of lease to property in San Francisco declared forfeited, and for the purpose also of obtaining possession of said premises, and of securing judgment for rent and for damages. He avers that in May, 1913, judgment in said action was entered against him for three thousand five hundred dollars; that without his knowledge, permission, or consent, an attorney at law, Edwin L. Forster by name, had assumed to represent him in said litigation; and that petitioner had no notice of the setting of the cause for trial, or the trial thereof or the entry of judgment therein until June, 1913. The petition recites his application within six months after entry of judgment to have said judgment set aside; the denial of his motion; and his appeal from the order refusing to grant the relief sought. That appeal is still pending (S. F. No. 7228), and although appellant in that case (petitioner here) has filed that which is in form a stay-bond, he seeks to have the judgment stayed by the court on the ground that the said bond will not operate on the judgment itself and that the issuance of execution, which is threatened, will deprive him of the fruits of victory if he shall be successful in his appeal from the order refusing to set aside the judgment.

This court, upon reading the petition, issued an order to show cause and stayed proceedings upon the judgment until the hearing and determination of said order.

It seems to be agreed by petitioner and respondents that the judgment is not stayed by the appeal from the order refusing to set aside the judgment. Indeed this court has declared that, except on an appeal from an order refusing a new trial, the judgment is not stayed by an appeal from an order made after judgment and by the filing of a bond.