Stateler v. Superior Court of Alameda Cty.

Van Fleet, This is an original proceeding in this court by certiorari, seeking to review and have [538]annulled an order of said superior court made in a proceeding in insolvency.

In December, 1894, R. P. Thomas, a resident of Alameda county, filed in said superior court his voluntary petition in insolvency, and thereupon the usual order was made, as provided in the Insolvent Act, adjudging Thomas insolvent and staying all proceedings against him. Subsequently one Chetwood, a creditor, was elected and duly qualified as assignee of the estate. Thereafter the petitioner herein, a creditor whose claim had been filed against said estate, took and perfected an appeal to this court from said order of adjudication, and said appeal is still pending here.

On March 30th, and after the perfecting of said appeal, Chetwood, whose claim is based upon a judgment theretofore recovered by him against said insolvent in the superior court of the city and county of San Francisco, but under which no execution had been levied or lien acquired in any manner upon any property of the insolvent in Alameda county, made an application to said superior court for a modification of the order of adjudication to the extent of permitting him, as such judgment creditor and assignee, to take out execution upon his said judgment and levy it upon certain real estate constituting the homestead of the insolvent in Alameda county, which it was alleged largely exceeded in value the statutory exemption, and to subject such excess in value to the satisfaction of said judgment. The superior court granted said application and made an order modifying said order of adjudication in the manner requested, and said Chetwood thereupon took out execution and is proceeding to subject said property to the satisfaction of his said judgment. The said order of modification was made without notice to or consent of the petitioner, and petitioner deeming that said court had no power to make the order, and there being no appeal therefrom, he seeks the aid of this proceeding to have the order annulled.

We think it clear that the court was without authority [539]to make the order complained of. The order of adjudication was an appealable order, and the effect of the appeal from that order was to stay “ all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein.” (Code Civ. Proc., sec. 946; Dennery v. Superior Court, 84 Cal. 7; Pennie v. Superior Court, 89 Cal. 31.) Pending the appeal the superior court had no more power to modify the order appealed from in the manner indicated than it would have had to proceed and enforce it in its entirety. The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court, and that court is without power to proceed further as to any matter embraced therein until the appeal is determined. (Ruggles v. Superior Court, 103 Cal. 125.)