Weldon v. Rogers

California Supreme Court Dec 15, 1908 No. L.A. No. 2217.Published

Before: Siiaw, Angellotti, Sloss, Beatty, Bank

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Holding. The court held that a summary judgment entered against a defendant and his sureties without notice or process was void because the underlying appeal was not from an order directing the payment of money, thus failing to satisfy the statutory requirements for such a judgment under Section 942 of the Code of Civil Procedure.

Issues

Whether a summary judgment against a defendant and sureties is valid when the underlying appeal was not from an order directing the payment of money.
Whether a judgment entered ex parte without notice or process against a defendant who did not sign the undertaking is valid.

Disposition. reversed

Quotations verified verbatim against the opinion

“The new judgment, as against him, was given without jurisdiction and is not only erroneous, but wholly void.”

“Section 942 of the Code of Civil Procedure provides for an undertaking of the form here used and for an ex parte judgment thereon against the sureties, only upon appeals “from a judgment or order directing the payment of money.””

“The judgment rendered in pursuance thereof was without authority and void.”

Synopsis

APPEALS from a judgment of the Superior Court of Los Angeles County. George H. Hutton, Judge.

The facts are stated in tbe opinion of the court.

[634]

SIIAW, J.

Appeals are here presented from a judgment of the superior court, entered,

ex parte,

against Ralph Rogers, defendant in a former judgment, and Mabel Bailey Rogers and Hugh Glassell as sureties in an undertaking, given upon a former appeal in the catise for the purpose of securing a stay of proceedings. (See

Weldon

Rogers,

151 Cal. 432, [90 Pac. 1062], decided in this court June 22, 1907.)

On April 2, 1891, a judgment was entered in the superior court for $3979.15, in favor of T. J. Weldon against Ralph Rogers. This judgment remains unpaid. On April 10, 1905, on motion of the present respondent, who was then and is now acting as executrix of the estate of T. J. Weldon, deceased, an order was made in that cause, the material part of which is as follows, to wit: “It is now therefore ordered that execution issue and that the said judgment be enforced in favor of Sophie B. Weldon, executrix of the last will and testament of said T. J. Weldon, deceased, plaintiff herein, and against the defendant Ralph Rogers, for the sum of $3979.15, with interest from April 2d, 1891, at the rate of seven per cent per annum, now amounting to $7,879.44.” Ralph Rogers moved the said court to set aside this order and recall and quash said execution, and on May 22, 1905, the court made an order denying said motion. From the latter order said Rogers appealed, giving the usual three-hundred-dollar undertaking on appeal, under section 941 of the Code of Civil Procedure. Upon this undertaking, he applied to this court for a

supersedeas

staying proceedings on the judgment and execution aforesaid. On October 16, 1905, this court denied the said application. Thereafter, on October 23, 1905, the undertaking now in question, executed by Mabel Bailey Rogers and Hugh Glassell, but not by Ralph Rogers, was filed in the superior court. It is in double the amount of the aforesaid judgment, declares that it is given to stay proceedings on the order for the issuance of the execution and also on the order refusing to vacate the said order and recall the execution, and as prescribed by section 942 of the Code of Civil Procedure, it provides that if the order appealed from should be affirmed, and said Ralph Rogers should fail, for thirty days, after the filing of the

Weldon v. Rogers

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Synopsis

SIIAW, J.

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