Brown v. Rouse

California Supreme Court Jan 21, 1897 No. S. F. No. 773Published

Before: Beatty

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Holding. The court held that an appellant may file a new bond with different sureties after a failed initial justification attempt, provided the justification occurs within the twenty-day statutory period and proper notice is given. The court further held that the additional time provisions of Section 1013 of the Code of Civil Procedure do not apply to the five-day notice requirement for surety justification.

Issues

Whether an appellant may file a new bond with different sureties after failing to produce sureties for a scheduled justification.
Whether the failure to justify sureties on the date of the first notice forfeits the right to justify sureties within the twenty-day statutory period.
Whether Section 1013 of the Code of Civil Procedure extends the five-day notice period for surety justification based on the distance between the attorneys' offices.

Disposition. Writ of supersedeas issued

Quotations verified verbatim against the opinion

“the right to do so is conferred in express terms by the statute. (Code Civ. Proc., sec. 948.)”

Synopsis

Appeal—Stay of Execution—Exception to Sureties on Stay Bond— Time for Justification — Second Notice — New Bond.—Where the sureties on a bond given to stay execution pending an appeal have been excepted to by the respondent, the appellant has the full period of twenty days after such exception in which the sureties on the original bond or on a new bond, may justify, and if the sureties fail to appear for justification in pursuance of one notice, and there is sufficient time left of the twenty days allowed for justification to produce the same or other sureties upon five days’ notice, the appellant may give a new notice of justification, and, at the time noticed, may tender a new bond, the sureties upon which may then justify.

Id.—Order Granting Execution—Supersedeas.—Where the court below has made an improper order granting an execution while there is a proper bond on file to stay execution, the appellate court will grant a writ of supersedeas to stay the execution of the judgment.

Beatty, C. J. This is a motion for supersedeas, based upon the following facts: The defendants appealed from a money judgment, and in due time filed a stay bond in sufficient amount and proper form. On November 24, 1896, plaintiff excepted to the sufficiency of the sureties> and defendants gave notice that they would justify before the county clerk on December 4th, at 11 o’clock^ A. m. At that day and hour the plaintiff attended before the clerk, but neither the defendant nor her sureties appeared. On the same day, December 4,1896, the defendant’s attorney, who resided and had his office in San Francisco, mailed to plaintiff’s attorney at San Jose, where he resided and had his office, another notice, to [620]the effect that the sureties would justify before the county clerk of Santa Clara county—the county in which the action had been tried—on the tenth day of December, 1896, at 11 o’clock a. m.

■ At that day and hour the defendant’s attorney appeared at the clerk’s office and tendered a new bond, with other sureties, who duly justified before the clerk, and he thereupon approved and filed said bond. The plaintiff’s attorney, deeming the second notice of justification of the sureties unwarranted and insufficient, declined to appear before the clerk on the tenth day of December, and afterward moved the superior court to order execution to issue, notwithstanding the approval by the clerk of the bond filed on that day.

The motion for execution was granted by the court, and the question to be decided here is whether the appellant is entitled to a writ of supersedeas.

The respondent, in resisting her application, urges three reasons for holding that the county clerk exceeded his authority in approving the bond filed on December 10th.

In the first place, he says the notice was to the effect that the sureties on the original bond would justify, and the appellant had no right, in view of that notice, to file a new bond with different sureties. We think, however, that the right to do so is conferred in express terms by the statute. (Code Civ. Proc., sec. 948.)

In the next place, the respondent contends that, according to the decision in Hill v. Finnigan, 54 Cal. 494, the appellant, by failing to produce her sureties for justification on December 4th, in pursuance of her first notice, thereby forfeited her right to justify them, or other sureties, at any other time.

Brown v. Rouse

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