Owen v. Pomona Land & Water Co.

California Supreme Court Apr 27, 1899 No. L. A. No. 637Published

Before: Beatty

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Holding. The court held that the judgment was in substance a decree of foreclosure rather than a simple money judgment, and because the plaintiff was in possession of the property, no additional stay bond was required beyond the standard three-hundred-dollar undertaking. Consequently, the execution and sale were invalid as the proceedings were stayed by the appeal.

Issues

Whether the judgment was a money judgment requiring a stay bond under section 942 of the Code of Civil Procedure.
Whether the ordinary three-hundred-dollar undertaking on appeal was sufficient to stay proceedings on the judgment.

Disposition. Motion granted.

Quotations verified verbatim against the opinion

“it is now the settled law of this state that proceedings on the judgment can be, and are, stayed by the filing of a sufficient undertaking on appeal from an order denying a new trial.”

“this is a case not covered by any provision of the statute for the filing of an additional stay bond, and proceedings on the judgment were therefore stayed by the ordinary undertaking on appeal.”

Synopsis

Appeal—Order Denying New Trial—Stay of Proceedings.—Proceedings to enforce a judgment are stayed by a sufficient undertaking given on appeal from an order denying a new trial, with the same effect as a like undertaking given upon appeal from the judgment.

Id.—Sufficiency of Undertaking—Foreclosure of Lien of Purchaser —Rescission of Contract of Sale.—Upon appeal from an order denying a new trial in an action by a purchaser in possession, to enforce rescission of the contract of sale of land and water stock, and to recover the moneys paid thereunder, including the value of his improvements, where the decree annulled the contract, and adjudged the total sum expended to be a lien upon the property purchased, which was ordered sold to satisfy the lien, and the judgment was ordered to be docketed for any unpaid balance, the case is not covered by any provision of the statute for an additional stay bond, and the ordinary undertaking on appeal in the sum of three hundred dollars is sufficient to stay proceedings upon the judgment.

Id.—Supersedeas—Order Setting Aside Sale and Quashing Execution.—Where the respondent takes out an order of sale and sells the property, pending such .appeal, and becomes the purchaser thereof, the appellate court, upon motion of the appellant, will order the sale set aside, and the execution quashed.

BEATTY, C. J. This is an action by the vendee against his vendor to recover moneys paid in pursuance of a contract for the sale of land and certain shares of water stock, and for damages.

The plaintiff took possession of the land at the date of the contract and has ever since retained possession. By the judgment of the superior court it was decreed that the contract had been rightfully rescinded by plaintiff; that it should be annulled, and that plaintiff should have judgment for the amount of his payments under the contract and the value of his improvements on the land, in all about eight thousand dollars. This sum was declared to be a lien upon the land described in the contract and upon the water stock. By further provisions of the decree the land and stock were ordered to be sold and the proceeds, after payment of costs and expenses, applied to the payment of the amount found due to the plaintiff. In ease of deficiency the clerk was directed to docket a judgment for the unpaid balance. In respect to all these provisions the decree follows very closely and exactly the terms of the ordinary decree in cases of foreclosure of mortgages.

In due time the defendant appealed from this judgment and subsequently took a separate appeal from an order denying its motion for a new trial. Each appeal was regularly perfected by the filing of a proper undertaking in the sum of three hundred dollars, but no separate undertaking to stay the proceedings was given on either appeal. Subsequently, the appeal from the judgment was dismissed for failure to file the transcript in time, but the appeal from the order is still pending. After the entry of the order of dismissal of the appeal from the judgment, but before the issuance of the remittitur, the plaintiff took out an execution or order of sale, under which the sheriff sold the property described in the decree, the plaintiff becoming the purchaser. The appellant now moves to vacate and set aside said sale and to quash the execution upon the ground that they were in violation of the right to a stay of proceedings secured by the appeals from the judgment and order denying a new trial.

No question is made as to the power and duty of this court to grant the relief sought by the motion if all proceedings on the judgment were stayed by the appeal from the order denying [333]a new trial. (Bool v. Hall, 105 Cal. 413; Hill v. Finnigan, 54 Cal. 493; Kreling v. Kreling, 116 Cal. 458; Brown v. Rouse, 115 Cal. 619; Williams v. Borgwordt, 115 Cal. 617; Swasey v. Adair, 88 Cal. 203; Hubbard v. University Bank, 120 Cal. 632.) But the respondent contends, in the first place, that neither the appeal from the judgment, nor the appeal from the order, operated as a stay because there was no stay -bond, and, if this point is ruled against him, he further contends that it was only the appeal from the judgment that would have stayed execution, and since that appeal was dismissed before the execution was taken out, the fact that the remittitur had not been issued upon the order of dismissal amounts at most to an irregularity in the proceeding, and is not a sufficient ground for setting aside the sale.

Owen v. Pomona Land & Water Co.

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