Messenkop v. Duffield

California Supreme Court Dec 30, 1930 No. Docket No. L.A. 12416.Published

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Holding. The court denied the petition for a writ of supersedeas regarding the possession of real property because the judgment had already been executed, but granted a stay of execution regarding the money judgment contingent upon the filing of a sufficient undertaking.

Issues

Whether a writ of supersedeas can restore possession of property after a judgment has been fully executed.
Whether a party is in contempt for exercising property rights after a judgment is executed but before a stay order is issued.
Whether the court should exercise its discretion to stay execution of a money judgment pending appeal.

Disposition. denied in part and granted in part

Quotations verified verbatim against the opinion

“The effect of a supersedeas is not to undo what already has been done, but to hold matters in the same condition as they existed at the time the stay became effective.”

“Petitioner’s motion for an order restoring her to the possession of the real property in suit and adjudging respondents to be in contempt of court is denied.”

[224]

THE COURT.

Petition for writ of

supersedeas.

Upon an appeal from a judgment of the Superior Court of Los Angeles County decreeing plaintiff, Louis H. Messenkop, to be the owner and entitled to the possession of real property in the city of Los Angeles, and also awarding plaintiff a money judgment for $1140, defendant and cross-complainant, Kathleen Duffield, filed an undertaking in the sum fixed by the court, to wit, $7,000, with five personal sureties. Said plaintiff, Messenkop, and cross-defendant, William L. Milne, excepted to the sufficiency of the sureties. The sureties were found insufficient and the undertaking rejected by a court commissioner on June 5, 1930. Defendant, on June 7, 1930, filed her petition for a writ of

supersedeas

in this court, praying that the execution of the judgment be stayed pending the hearing on the application for

supersedeas,

and that after hearing held a writ of

supersedeas

issue upon the filing of an undertaking in an amount fixed by this court. Petitioner alleged that said commissioner improperly rejected the sureties, and that the property owned by them was shown far to exceed the amount of the undertaking. On June 16, 1930, this court entered its order directing respondents to show cause why a writ should not be issued and staying execution of the judgment pending hearing on said order. The proceeding is now before us after hearing held on September 15, 1930, pursuant to said order to show cause.

On September 5th petitioner filed notice in this court of a motion for an order restoring her to possession and adjudging respondents to be in contempt for violation of the court’s order of June 16th. It appears from petitioner’s affidavit accompanying the notice of motion and from the answer of respondents, that on June 9th, after petitioner had filed her application for a writ of

supersedeas,

but before this court had taken any action thereon, the sheriff executed the portion of the judgment decreeing plaintiff entitled to possession of the property under a writ issued to him on June 6th. Petitioner alleges that respondents and said sheriff had notice of the application made by her to this court for a writ of

Messenkop v. Duffield

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THE COURT.

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