McClintock v. Powley

SEAWELL, J.

Petition for writ of

supersedeas.

Petitioners, Maud Powley and Charity F. Powley, have appealed to this court from an order of the Superior Court of Los Angeles County directing that a writ of assistance issue to place Andrew E. McClintock and Mary E. McClintock, his wife, in possession of real property in said county purchased by said McClintock and wife at a mortgage foreclosure sale, held under a judgment rendered in their favor as plaintiffs and against petitioners herein. Petitioners allege that they have filed an undertaking on appeal in an

[335]

amount fixed by order of the court below, to wit, $1500, as required by the provisions of section 945 of the Code of Civil Procedure, to stay proceedings upon the order appealed from, and that notwithstanding the stay thereby created the said court has denied their motion to restrain the sheriff from executing said writ of assistance. Said sheriff threatens to place said purchasers in possession of the property involved unless restrained by order of this court. The said purchasers, in their answer to the petition herein, contend that this court should refuse to decree that a statutory

supersedeas

has been created for the reason that the order fixing the amount of said undertaking was procured by the fraud of petitioners’ attorney and said sum is grossly insufficient. They pray that this court annul the undertaking in the sum of $1500 and require an undertaking in a larger amount as a condition to granting a writ of

supersedeas.

The court below has not set aside the order fixing the amount of the bond in the sum of $1500.

The order that a writ of assistance issue was made on April 14, 1930, and the petitioners’ notice of appeal therefrom filed on the same day. The order fixing the amount of the stay bond in the sum of $1500 was made on April 16, 1930, without notice to plaintiffs. An affidavit of Judge Doran, presiding judge of the superior court, who made the order fixing the amount of the undertaking, has been filed in this court with the answer to the petition herein. It appears from said affidavit and from an affidavit of petitioners’ attorney that said attorney presented a form undertaking to Judge Doran, through the bailiff in his department, on April 15, 1930. The amount of $1500 had already been noted on the form undertaking by the commissioner in said department, with whom petitioners’ attorney avers that he had conferred. The petitioners’ attorney informed said bailiff, by whom the information was communicated to the judge in his chambers, that the property consisted of a seven-room dwelling-house. Having no other information as to the property involved, said judge wrote into the undertaking “Fifteen Hundred Dollars ($1,500.00),” and the bond was filed on April 15th.