Cent. Lumber & Mill Co. v. Center

Haynes, C. The Central Lumber and Mill Company brought an action against Center, Joseph Davis et al., to foreclose a lien upon the leasehold interest of said Davis in a certain lot for materials furnished by the plaintiff to said Davis as owner. The action was dismissed as to all the defendants except Joseph Davis.

The judgment, so far as material to the questions involved, was that the plaintiff have and recover judgment against defendant Joseph Davis in the sum of one [195]hundred and ninety-eight dollars and forty-seven cents, with interest, .... and for the sum of five dollars cost of filing the notice of lien herein, and twenty-five dollars counsel fees herein, making in all the sum of two hundred and forty-five dollars and eighty cents, together with plaintiff’s costs and disbursements herein, amounting to the sum of thirty dollars and twenty-five cents; and said sums are a lien upon the building upon the land hereinafter described and the interest of Joseph Davis in said land,” and, after stating said interest and describing the property, directed that it be sold by the sheriff, according to law and the practice of the court.

Davis appealed from that judgment, and, in addition to the ordinary three hundred dollars undertaking for the prosecution of the appeal and the payment of costs and damages, as required by section 941 of the Code of Civil Procedure, gave an undertaking to stay execution in double the amount of the judgment under section 942 of the Code of Civil Procedure, which provides for appeals from judgments or orders directing the payment of money.

Said appeal was dismissed, and, after the remittitur went down, the superior court allowed respondent’s counsel a fee of fifty dollars for services in the supreme court under section 1195 of the Code of Civil Procedure, relating to the enforcement of mechanics’ liens, and, upon motion, entered judgment against the sureties in said undertakings on appeal, and from that judgment Nathan Cohen, one of said sureties, appeals.

Appellant contends that the court erred in granting the plaintiff’s motion for judgment against the sureties; that, as to the first undertaking, no costs or damages were awarded the plaintiff upon the dismissal of the appeal; and, as to the undertaking to stay execution, that it was unauthorized by the statute and ineffectual to stay the execution of the judgment, and was therefore without consideration; that it should have been given under section 945 of the Code of Civil Procedure, which provides: “If the judgment or order appealed from