Rosenfeld v. Miller

California Supreme Court Oct 24, 1932 No. Docket No. L.A. 13819.Published

Before: Curtis

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Holding. The court granted a writ of supersedeas to stay execution of a judgment pending appeal, finding it necessary to preserve the status quo where the defendant's failure to qualify sureties was due to a good-faith misunderstanding and the defendant provided a sufficient undertaking.

Issues

Whether an appellate court has jurisdiction to grant a writ of supersedeas to stay execution of a judgment pending appeal.
Whether a writ of supersedeas should be granted when sureties on an undertaking fail to qualify due to circumstances beyond the appellant's control.

Disposition. Writ of supersedeas granted upon conditions.

Quotations verified verbatim against the opinion

“The purpose of the writ of supersedeas is to preserve the rights of a litigant until there is a final determination of his appeal.”

CURTIS, J.

In this action plaintiff recovered a personal judgment against the defendant in the sum of $16,928. Defendant in due time appealed from said judgment and on June 25, 1932, and within the time provided by law, filed an undertaking executed by two sureties staying the execution of said judgment. Plaintiff excepted to the sufficiency of said sureties, and on the day fixed for the justification of said sureties one of said sureties failed to qualify in the amount required, and the court ruled the undertaking insufficient. Said hearing was had and said ruling was made on Saturday, the sixteenth day of July, and the time allowed by law for the justification of new sureties on said bond expired on Monday, July 18th. Defendant endeavored to procure new sureties within the time

[562]

allowed, but due to the shortness of said time he was unable to do so. On July 20th the plaintiff caused execution to be issued and placed in the hands of the sheriff, and the latter levied upon and took possession of the factory, machinery, equipment and stock in trade used by the defendant in the carrying on of his business of manufacturing and selling curled . hair in the city of Los Angeles, which said business defendant had carried on and conducted in said city for the past forty-seven years. It is further shown that said sheriff under said writ of execution has advertised said property for sale and will sell the same unless prevented by order of this court and that a sale of said business by said sheriff will destroy said business and the good will thereof to the irreparable damage of the defendant. Thereupon defendant made application to this court for a writ of

supersedeas

staying the execution of said judgment pending the appeal of said action. The writ was granted on the

ex parte

application of the defendant. A petition for a rehearing was filed by the plaintiff mainly on the ground that the appeal of said action was to the District Court of Appeal and not to this court, and, therefore, this court had no jurisdiction of the action and its order granting said writ was void. This point we determined was well taken. We think the law is clear that an appellate court had no jurisdiction to grant a writ of

Rosenfeld v. Miller

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CURTIS, J.

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