Parrett v. Carothers

CONREY, P. J. In this action there is now pending an appeal by the defendants Rix from a judgment rendered [725]against them and the other defendants, in the sum of $5,000, damages resulting from the death of one Homer C. Parrett, caused by the negligent operation by defendant Warren A. Rix of an automobile. Appellants filed in the superior court an undertaking to stay execution on said judgment, pending the appeal. The Central Surety and Insurance Company executed said undertaking as sole surety thereon. The plaintiffs applied to the superior court for an order to strike from the files the said undertaking, because by reason of a stated defect in form it did not comply with the statutory requirements of such an undertaking, and because the surety was liable on a certain policy of insurance issued by it, so that said undertaking did not furnish plaintiffs additional security as required by law. By an order made on December 28, 1934, said motion was granted. On the third day of January, 1935, appellants filed a new undertaking, this time in proper form, but with the same surety. On the next day the plaintiffs applied to the superior court for an order striking from the files the said second undertaking, and for an order directing the issuance of execution on the judgment. That court thereupon notified appellants that on January 7th it would grant said motion and order the issuance of the demanded execution. Appellants then applied to this court by petition for the writ of supersedeas. After due notice upon an order to show cause (with incidental temporary stay of execution), the said application was presented, argued by counsel for the respective parties, and is submitted for decision.

The alleged incapacity of the Central Surety and Insurance Company, if there be such incapacity, to act as surety on the stay bond, arises solely from the admitted fact that at the time of the accident in which Homer C. Parrett lost his life, there was in effect a certain “automobile liability” insurance policy, issued by said company to appellant Lenore V. Rix; and that by reason of its interest as such insurer, in the result of the action, the company was active in the defense of the action during the trial thereof. No question is raised, challenging the solvency, or general qualifications of the company to act as. surety on undertakings required by law in this state.

We are of the opinion that in this proceeding it is not necessary to decide the question presented by counsel,