Hoppe v. Hoppe

Harrison, J. Application for a writ of supersedeas.

The above-named plaintiffs, claiming to be the owners of an undivided interest in certain lands, brought an action in partition against the defendants, Julia Hoppe and W. A. Fountain, alleging that the latter held a mortgage upon the land, exe[537]cuted to him by his co-defendant Julia. Fountain also brought an action against Julia to foreclose his mortgage, and thereafter, by an order of court, the two actions were consolidated. The court sustained defendant’s demurrer to the claim of the petitioners for the partition of the laud, and rendered judgment in his favor against Julia for a foreclosure of his mortgage and a sale of the lands. This judgment does not refer to the claim for partition, but is limited to the claim on the mortgage, and it does not appear that the determination of the court upon the partition claim has passed into a judgment. From this judgment separate appeals have been taken, one by the petitioners herein, and one by the defendant Julia.'

By the terms of the judgment appealed from, a receiver is appointed who is directed to make sale of the mortgaged premises, and out of the proceeds of said sale to pay the amount of the -plaintiffs’ mortgage claim, and report the deficiency, if any, to the court. The defendant is also directed to deliver immediate possession of the premises to the said receiver, who is also directed to retain possession thereof until a redemption from said sale shall be made, or until the time for such redemption has expired, and thereupon to execute a deed to the purchaser. Upon this judgment an order of sale was issued to the receiver, and after he .had advertised the land for sale, the plaintiffs in the partition suit gave notice that they would apply to this court for a stay of proceedings pending the appeal. Before the day noticed for the hearing, the receiver had, however, sold the laud in accordance with the directions of the judgment, for the amount of the mortgage claim by which the judgment was satisfied.

Section 945 of the Code of Civil Procedure provides: "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 undertaking 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.” The undertaking given by the appellants in the present case is only the ordinary three-hundred-dollar bond for costs of appeal, and makes no provision against the commission of waste.