Bateman v. Superior Court

HENSHAW, J.

This is an application for a

supersedeas,

based upon the following facts: The Electric Laundry Company prosecuted its action for unlawful detainer against William Bateman, petitioner herein, which action was founded upon an alleged breach of covenant and upon alleged default in the payment of rent. The cause was tried before a jury. The instructions of the court to the jury were upon the law covering both grounds of action. The jury returned a verdict in favor of plaintiff, and judgment followed accordingly, for the sum of $3,360 as treble rents, the sum of $163 as costs of suit, for the recovery of the demised premises, and for forfeiture of the unexpired term of the leasehold. From this judgment defendant appealed, filing an undertaking upon appeal in the sum of $300, but neither filing nor applying for an order fixing the amount of the undertaking to stay execution, as provided by section 1176 of the Code of Civil Procedure. Thereafter defendant, by his counsel, and in the absence of the judge who tried and rendered judgment in the cause, appeared before another judge of the superior court, and paid into court the sum of $1,312, the amount of rent due, together with interest and costs. Representation was made to

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the court and judge (respondent herein) that the judgment had been rendered solely for default in the payment of rent, and that therefore defendant was entitled to relief under the .provisions of section 1174 of the Code of Civil Procedure, and thus an order was obtained directing the entry of a satisfaction of judgment and the restoration to defendant of his leasehold estate. This order was given

ex parte,

without notice to the plaintiff. Being advised of it, upon the following day, plaintiff made application to the court for its vacation and cancellation, and after a full hearing the judge and the court which granted the order made its further order vacating and setting it aside. Prom this last order of the court petitioner appeals, and here seeks by

supersedeas,

or by prohibition, or by mandate, to stay the execution of the judgment in unlawful detainer, his contention being, that his appeal from the order vacating the order for satisfaction of judgment stays all proceedings upon that order, so that the judgment stands satisfied, and therefore beyond the reach of execution absolutely, or at least until the order here appealed from shall be affirmed upon appeal.