Powers v. Chabot

Temple, C. These two appeals have been considered together. The last-named is a proceeding in a case brought to restrain defendant Powers from transferring a certain promissory note. Powers answered, and, by a cross-complaint, sought to foreclose a chattel mortgage. A decree of foreclosure was entered, and plaintiffs appealed, giving two bonds, one for three hundred dollars, and a stay bond in double the amount of the judgment, with Pardee and Chabot as sureties.

The judgment having been affirmed, upon return of the remittitur, a sale was had of the mortgaged property, from which only a part of the debt was realized. Motion was then made for judgment against the sureties on the stay bond for the deficiency. Judge Crane refused to entertain the motion, and application was made by Powers to this court for a mandate, which was refused on the ground that no stay bond was required in such cases. It was therefore held that the stay bond was without consideration and void. (Powers v. Crane, 67 Cal. 65.)

Chabot having died, a claim was presented against his estate for the deficiency, and was rejected March 30,1888.

June 4, 1889, Powers commenced the proceeding in the original suit to obtain a judgment against the sureties on the stay bond for the deficiency. This was denied October 9, 1889, and from the order denying this motion one of these appeals is taken.

This proceeding is authorized only on statutory undertakings; and inasmuch as the bond in question here had no validity as a statutory bond, this motion was properly denied, and the order should be affirmed.

Appellant claims that he might have had the mortgaged property sold as perishable, notwithstanding the appeal, and that he forbore to do this because of the [268]stay bond on appeal, which he supposed afforded him ample security for his debt. He claims that this fact constitutes a consideration for the undertaking, and as this fact was not before the court in Powers v. Crane, 67 Cal. 65, that case is not authority for the conclusion that the bond is absolutely void. But if appellants were right in this contention, it would simply go to the effect that the undertaking is valid as a common-law obligation. The case is still conclusive authority for the proposition that the bond was void as a statutory bond; that it was not a stay bond on appeal, and therefore judgment without suit could not be entered against the sureties in the original action.