Freeman v. Donohoe

WILBUR, J.

This is an application by the defendants for a writ of

supersedeas

to prevent the issuance of a general execution as on a money judgment pending the appeal. The plaintiff brought suit against the defendants for an accounting of partnership profits and to have it adjudged that the title of certain real estate was held in trust by the defendants for the partnership. The defendants denied the existence of a copartnership, but the court found the facts to be as alleged by the plaintiff, ordered an accounting, and thereafter entered its findings and judgment that the plaintiff’s share in the copartnership profits, after the payment of all of the debts of the copartnership, was $31,504.85, together with interest from May 26, 1914, at the rate of seven per cent per annum, amounting to $15,755.46, making a total of $47,260.31.

The judgment “orders, adjudges and decrees as follows: 1. That plaintiff have and recover from the defendants, jointly and severally, the sum of $31,504.85, in lawful money of the United States, together with interest thereon from the date of the commencement of this action, to wit, May 26, 1914, at the rate of 7 % per annum, making a total of $47,260.31.” It is upon this portion of the judgment that the plaintiff threatens to secure an execution, in default of a stay bond in twice the amount of $47,260.31, in accordance with section 942 of the Code of Civil Procedure.

The other portions of the judgment may be summarized as follows: In paragraph 2 of the judgment it is declared that plaintiff and defendants were copartners doing a general real estate business until June 1, 1910. In paragraph 3 it is provided that the real property belongs to the copartnership and that plaintiff is the owner of one-third and the defendants of two-thirds thereof. In paragraph 4 it is declared that all the debts and obligations of the copartnership have been paid, and in paragraph 5 that no other property belongs to the copartnership other “than the said profits and the said lands, save and except the properties described in the next paragraph.” In para

[172]

graph 6 certain items of property are described, and these items by the plaintiff’s consent are assigned to the defendants, plaintiff waiving all interest therein. In paragraph 7 a lien is declared in favor of the plaintiff upon the interests of the defendants in and to the real property belonging to the copartnership and remaining unsold and described in paragraph 8. In paragraph 9 all other property is awarded to defendants by consent. Paragraph 10 directs the sale of all real estate belonging to the copartnership and provides that one-third of the net proceeds thereof shall be paid to the plaintiff “for and on account of his one-third interest in said properties” and that the clerk “shall also pay to the plaintiff so much of the remaining two-thirds of such proceeds as may be necessary to be applied to the liquidation of any amount remaining unpaid at that time on this Judgment; and shall thereupon enter in the Judgment Book of this Court containing the record of this Judgment a credit of the said amount of money so paid to plaintiff and representing the two-thirds interest therein of the defendants, and shall pay to defendants any proceeds remaining after the payments provided for herein. ” The defendants gave a bond of $300 on appeal and also a bond for $2,500, the amount fixed by the court for rental and waste for the purpose of staying the sale of the real estate under section 945 of the Code of Civil Procedure. If the judgment is to be construed as directing the sale of the partnership real estate and the application of the proceeds thereof to the plaintiff’s claim and thereafter the docketing of a deficiency judgment, if any, the writ of