Knowles v. Thompson
Before: Van Dyke
Synopsis
Appeal from Judgment—Stay Bond—Motion for New Trial not Stayed—Power to Grant New Trial.—The filing of a stay bond upon appeal from the judgment does not stay action upon a motion for a new trial; and the court has power, pending such appeal, to grant a new trial. Proceedings on motion for a new trial are not in the direct line of the judgment, but are independent, and collateral thereto.
Id.—Dismissal of Appeal—Mandamus to Compel Execution—Vacation of Judgment by New-trial Order.—Notwithstanding the dismissal of the appeal from the judgment, mandamus will not lie to compel execution of the judgment, where, pending the appeal, the court granted a new trial, thereby vacating the judgment.
Id.—Refusal of Mandamus by Superior Court—Remedy by Appeal —Denial of Petition in Supreme Court. — Where the superior court refused a mandamus to the clerk to compel the issuance of execution, on the ground that a new trial had been granted, the petitioner has an adequate remedy, by appeal from the judgment denying the writ; and such remedy is ground for the denial of a petition in this court for the writ.
VAN DYKE, J.
Mandamus to compel the respondent, clerk of the county of San Mateo, to issue an execution in a case in which the petitioner is plaintiff, and the Crocker Estate Company, a corporation, and Ernest A. Leigh are defendants.
The petition shows that on the trial of said cause, which was an action of forcible entry and detainer, a verdict was rendered in favor of the plaintiff therein, January 5, 1900, and on the sixth day of January judgment was rendered on said verdict in favor of the plaintiff and against said defendants; that thereupon the defendants in said action perfected an appeal from said judgment to this court, February 9, 1900, staying all proceedings upon said judgment so appealed from; that on November 5, 1900, upon motion of the respondent in such appeal, plaintiff in said action, after due notice given, this court dismissed the appeal, on the ground that the appellants therein, the defendants in said action, had failed to file a transcript of the record therein. It also appears from said petition that after the appeal had been taken in said action, as stated, to wit, on the seventh day of May, 1900, the superior court in which said action was pending'duly made and entered an order granting a new trial therein, which order has not been vacated nor set aside, and no appeal taken therefrom; on March 26, 1901, the
remittitur
on the dismissal of the appeal from the judgment in said cause having theretofore been filed, and the clerk of said court having refused to issue an execution on said judgment, the petitioner applied to said superior court for a writ of
mandamus
to compel said clerk, the respondent herein, to issue said execution; that the court below refused to issue
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said writ, on the grounds stated in the petition herein; that a new trial in said action had been granted.
Respondent demurs to the petition filed herein, and also answers the same. The main grounds in support of the demurrer are: 1. That the judgment in the case on which it is sought to have an execution issued has been vacated and set aside by the order granting a new trial in said action; 2. That the petitioner has a plain, speedy, and adequate remedy in due course of law, by an appeal from the order of the superior court denying his application for
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