Hinkel v. Crowson

[69]

THE COURT.

This is an application for a writ of

supersedeas

pending appeal, in a case in which the judgment adjudged a vendor’s lien and directed a sale in satisfaction thereof. The case falls within the provisions of section 945 of the Code of Civil Procedure, the judgment directing the sale of real property. .The property is in the possession of appellant. Section 945 of the Code of Civil Procedure requires that the judge of the court rendering the judgment shall fix the amount of the bond. It is alleged that the judge refuses to fix the amount of a bond to indemnify against waste alone, but insists on including therewith an amount covering the value of the use and occupation of the premises. It is claimed that appellant is entitled to a stay upon a bond covering waste alone. (See

Englund

v.

Lewis et al.,

25 Cal. 337, 354, which appears to have decided this very question upon a statute like section 945 of the Code of Civil Procedure.)

[1]

However, we have no jurisdiction to fix the amount of the bond, and there can be no

supersedeas

in the absence of a bond the amount of which is fixed in the manner provided by the statute.

[2]

Petitioner’s sole remedy is a proceeding in

mandamus.

(See

Doudell

v.

Shoo,

158 Cal. 50, [109 Pac. 615].)

The application is denied.

Angellotti, C. J., Olney, J., Wilbur, J., Shaw, J., Kerrigan, J.,