Heinlen v. Beans

Thornton, J. In an action for specific performance, brought by John Heinlen against Calvin Martin and Wayne B. Rogers, judgment was rendered on the 28th of January, 1873, that plaintiff recover of the said defendants the sum óf ten thousand dollars, the value of the use and occupation of the land in controversy fr.om the 27th of November, 1868, to the date of the rendition of the judgment; that defendants execute a deed of conveyance of the land above mentioned, and deliver possession thereof to plaintiff, with costs of suit. Defendants in the same case made a motion for a new trial, which was denied, on the 11th of December, 1873, and they appealed from the judgment and the order denying their motion for a new trial.

On these appeals, the defendants on the date last mentioned filed the three hundred-dollar undertaking required by sections 940 and 941, Code of Civil Procedure, an undertaking of stay as to the ten thousand dollars above mentioned under section 942, Code of Civil Procedure, and as they desired to retain possession of the land involved in the suit, they executed and filed a further undertaking for that purpose under section 945, Code of Civil Procedure.

These undertakings were executed by T. Ellard Beans and E. Auzerais, the defendants herein.

This action is brought on the undertaking last above mentioned to recover the value of the use and occupation of the land above mentioned during the period of the pendency of the appeal, and until the delivery of possession of said land to the plaintiffs.

The extent of the engagement of defendants under the provisions of the undertaking above mentioned may be perceived from the following portion of it, viz.:—

[297]“And whereas the appellants are desirous of staying that part of said judgment directing said defendants and appellants to execute a deed to said plaintiff and respondent, and also to deliver to the plaintiff the possession of the premises described therein, and the judge of this court having fixed the. amount of the undertaking for that purpose at five thousand dollars:

“Now, therefore, in consideration of the premises, and the said stay of the execution of the judgment, we do further jointly and severally undertake and promise, and do acknowledge ourselves bound in the further sum of five thousand dollars, that during the possession of such property by the appellants they will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, or the appeal be dismissed, they will pay the value of the use and occupation of the property from the time of the appeal to the delivery of the possession thereof pursuant to the judgment, not exceeding said sum of five thousad dollars.