Holland v. McDade

GAROUTTE, J. This appeal is from the judgment, without a hill of exceptions, and the questions involved arise upon the face of the complaint.

The action is one against McDade, former sheriff of the city and county of San Francisco, for damages claimed to have resulted from his refusal to release certain property of plaintiff [354]from execution, and also in publishing notice of sale thereof under said execution. This execution was issued and levied under a money judgment in the case of Curry v. Holland. Holland’s motion for a new trial in that case was denied, whereupon he appealed-from the order denying the motion, and without appealing from the judgment gave a bond upon appeal in double the amount of the judgment for the purpose of staying its execution. The acts of the sheriff of which complaint is made in the present action were done aft'er this purported stay bond was filed.

The important question presented by the appeal is: May an appellant upon appeal from an order denying his motion for a new trial give a bond in double the amount of the judgment and thereby stay its execution ? If he may do so, authority for it must he found in section 942 of the Code of Civil Procedure, where it is provided: “If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order.” By inspection of the foregoing provision of the law it would seem that very liberal rules of construction must he invoked in order to justify the giving of a stay bond upon an appeal from an order denying a motion for a new trial. At the same time, it was so directly decided in the comparatively early case of Fulton v. Hanna, 40 Cal. 278. The conclusion there declared is based upon the following reason: “Although an appeal from an order denying a motion for a new trial is in a different and distinct line of proceeding from a direct appeal from a judgment, still a reversal on appeal from the order denying a motion for a new trial, and remanding the cause for retrial, as effectually vacates the judgment as upon a direct appeal therefrom.” The reason here given has force, .and the only answer that can be made to its conclusiveness, if there be an answer, is that the statute does not expressly so provide. Yet the rule laid down in the case cited is a most wholesome one; for an appeal from a judgment which is absolutely beyond attack is an idle and useless proceeding. Indeed, such an appeal would be frivolous and render the appellant liable in