Ewing v. Jacobs
Before: Niles
Synopsis
Effect of Appeai from Money Judoment.—Under the provisions of the Code of Civil Procedure, as it stood in 1873, the perfecting of an appeal from a money judgment, and the filing of an undertaking to stay proceedings, operated merely to stay proceedings on the judgment, but did not release from levy property already seized by the Sheriff, under an execution issued on the judgment before the appeal was effected.
Idem.—Pending the appeal in such case, it was the duty of the Sheriff to retain possession of the property.
By the Court, Niles, J: Under the provisions of section nine hundred and forty-six of the Code of Civil Procedure, as it stood when this action was brought, the perfecting of the appeal in the case of Allinder v. Ewing, operated merely to stay all further proceedings upon the judgment, but did not release from levy the property already seized under execution. The lien acquired by the levy was not superseded by the giving of the undertaking on appeal, but was suspended until the decision of the Appellate Court; and in the interval it was the duty of the Sheriff to retain possession of the property. (Crocker on Sheriff, Sec. 35.)
Judgment affirmed.
Neither Mr. Justice Rhodes nor Mr. Justice McKinstry expressed an opinion.
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