Swasey v. Adair

Beatty, C. J. This is an action brought under sections 509 et seq. of the Code of Civil Procedure for the recovery of certain personal property, consisting of the furniture of a lodging-house.

The plaintiff, at the commencement of the action, filed the necessary affidavit and undertaking, and demanded the delivery of the property to him.

The defendants are husband and wife, but they appeared separately in the action, and the husband made no defense. The wife, Mrs. O. Adair, filed an answer, claiming the property as her own, and gave a bond, conditioned as required by law, whereupon the property was redelivered to her. At the trial, she and her husband both failed to appear, and judgment was entered against [204]them jointly for the return of the property, or its value, two thousand five hundred dollars, and for costs. Subse. quently, upon her motion, the judgment against her was set aside, and a new trial granted to her; but apparently the judgment as against her husband was allowed to stand. The case was thereafter tried upon the issues made by her answer to the complaint, and a second and separate judgment rendered against her for the return of the goods, or their value, fixed at two thousand dollars, and for costs. From this judgment, and from an order denying her motion for a new trial, she has appealed to this court, giving the ordinary undertaking for three hundred doldars, but no undertaking to stay proceedings.

The plaintiff and respondent has caused execution to be issued, not upon the judgment appealed from, but upon the first judgment entered, as above stated, against the appellant and her husband, and left to stand against him when set aside as to her. Under this execution the sheriff is threatening to take the property in controversy from the possession of a Mrs. Shaeffer, who claims it as a vendee of a party to whom it was sold and delivered by the appellant after its redelivery to her.

Upon a verified petition showing these facts, appellant now moves this court for a writ of supersedeas directing the sheriff to return said execution and commanding a stay of all proceedings on said judgment pending the determination of her appeal.

The case presents some anomalous features. There are two separate judgments in favor of the plaintiff for the return of the same goods, or their value, fixed in one judgment at two thousand five hundred dollars, and in the other at two thousand dollars; one judgment being against C. H. Adair, the husband, and the other being against the appellant, Mrs. 0. Adair, his wife. Execution is issued on the judgment against the husband, and under it the sheriff is threatening to take the goods in controversy from, the vendee of the wife, to whom they