McMillan v. Hayward

Hayne, C. This is a motion made in the appellate court for an order staying proceedings upon the judgment in the court below.

The suit was to foreclose a mortgage made by one Frank Scherf in his lifetime. He died, leaving a will by which all of his property was devised to his widow, Annie Scherf, who was appointed executrix, and qualified as such. Pending administration she married one Raschke, and the defendant Hayward was appointed administrator with the will annexed. This administrator, the surviving wife, the three minor children of the deceased, and the second husband were made defendants in the suit, upon the allegation that they had or claimed some interest which was subsequent and subject to the lien of the plaintiff’s mortgage. The complaint expressly waived all claim to a judgment for a deficiency, and no judgment for a deficiency was rendered. All of the defendants (except the second husband) appeal; and an undertaking in the sum of three hundred dollars was given.

The argument for the stay is, that if any one of the appellants be entitled to a stay, the whole judgment must be stayed, because it does not command the sale of the interest of any particular defendant, but of the whole property; and that the defendants, other than the surviving wife, are entitled to a stay on their three-hundred-dollar bond, because, as is alleged, they are not in possession, and hence are not within any of the sections providing for a special stay bond.

It is true that if the case does not fall within any of the sections providing for a special bond, the three-hundred-dollar bond effects a stay. And the only section that can be claimed to provide a special stay bond is as follows:—

“If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same cannot be stayed, unless a written un-

[87]dertalciug be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding the sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency.” (Code Civ. Proc., sec. 945.)