Romine v. Cralle

Works, J. J. — Several appeals have been taken in this case by the defendant Hirschler, one of which is still pending, the others having been dismissed. (Romine v. Cralle, 80 Cal. 626.)

On the twenty-fifth day of April, 1889, the attorney for said Hirschler filed in this court a petition for leave to file a stay-bond, and for an order of stay, in which it was alleged, in substance, that a bond had been given in the court below, but that for technical reasons the judge of that court had declined to receive the justification of the sureties or approve the bond. At the time this application was made, there were at least two appeals pending, one from the judgment, and one from the order denjúng a new trial. It is also claimed by the respondent in this proceeding that there had been two appeals from the judgment, and that, because the first was undisposed of, the second one, which was the one relied upon by the appellant, and the one then being prosecuted by him, was void. The petition for leave to file a stay-bond did not designate in which appeal it was desired to file the same, but it was recited as a fact that an appeal from the order denying a new trial had been taken, and that the transcript was then ready to be filed. On the filing of this petition, the following order was made: “On reading and filing the verified petition of John F. Burris herein, showing that a judgment had been heretofore entered in the above-entitled action in the superior court of the county of Sonoma, in favor of the above-named defendant Ed Hirschler; that said Hirschler had appealed therefrom to this court; that said judgment is a [434]money judgment; that in order to secure a stay of execution on said judgment, said Hirschler filed an undertalcing under and in pursuance of the provisions of section 942 of the Code of Civil Procedure of this state, with sureties sufficient in fact to comply with said provisions; that on exception being taken to their sufficiency as such sureties, said sureties attempted to justify before the county clerk of said county of Sonoma, and before the judge of said superior court; that for technical reasons the said undertaking has been rejected by the judge of said court; that in consequence thereof an execution has been or is about to be sued out on said judgment and placed in the hands of the sheriff of the city and county of San Francisco, and thereupon by him extended against the appellant’s property now being in said city and county, and praying for leave to file in this court a new undertaking on appeal, under section 942 of the Code of Civil Procedure, staying all proceedings on said judgment as allowed by law, in the sum of $3,743.02, with John F. Burris and Martin Sachs, both of said city and county, as sureties.