McCallion v. Hibernia Savings & Loan Society

Garoutte, J — Division Ho. 1 of a society known as the Ancient Order of Hibernians had several thousand dollars deposited in the Hibernia Savings and Loan Society. Dissension arose in the organization, and an action was brought against the Hibernia Savings and Loan Society by certain individuals claiming to compose the only true and genuine Division Ho. 1, to recover this money. Certain other parties making the same claims intervened, and asked that the money foe awarded to them. The Loan Society paid the money into court, and the intervenors were substituted as parties defendant. The city and county treasurer became the custodian of the fund under an or dev of the court during the pendency of the action. Judgment was rendered that plaintiffs were entitled to the money; that the city and county treasurer pay the same over to them, and that the defendants pay the costs of the action, amounting to three hundred and twelve dollars. Defendants appealed and gave a stay bond in the sum of seven thousand five hundred dollars, being double the amount of the judgment and costs. Upon appeal the judgment was affirmed. Subsequently, upon a return of the remittitur to the trial court, plaintiffs moved for judgment against the sureties upon the stay bond, as provided in section 942 of the Code of Civil Procedure, and judgment was thereupon rendered against them in the sum of about six hundred dollars. This appeal is prosecuted from that judgment.

The case disclosed by the record is not such a one as requires a bond to stay execution, and that fact is fatal to a recovery upon the bond and demands a reversal of the judgment. It was said in Powers v. Crane, 67 Cal. 66: “On behalf of the sureties, Avho are the real parties in interest here, it is claimed that the undertaking, except in so far as the three hundred dollars is concerned, about which no question arises, Avas Avithout consideration and void. The pretended consideration therefor [444]was a stay of execution of the decree appealed from, and if the law itself operated a stay upon the giving of a three-hundred-dollar bond, it would seem that the point is well taken. That the statute did so operate was held by this court in the case of Snow v. Holmes, 64 Cal. 232. As the statute itself wrought the stay, there was no consideration for the sureties’ promise. The benefit which the plaintiff in the case of Johnson v. Powers secured from the appeal came from the statute, and not from the promise of the sureties.” (See also Powers v. Chabot, 93 Cal. 266.) It is only upon a statutory bond that judgment can be ordered against the sureties on motion, and if the judgment from which appellants take this appeal is not such as calls for the giving of a bond to stay execution, aside from the ordinary three-lmndred-dollar appeal bond, the filing of a bond for that purpose is unnecessary and useless labor, and, if so filed, is void as a statutory bond.