Dowling v. Fedele

THE COURT. This is an application for a writ of supersedeas to stay the execution of a judgment pending an appeal therefrom. The judgment was entered in the Superior Court of San Diego County on November 6, 1952, in favor of this respondent and against this petitioner. The action involved a sale of personal property and the judgment, as entered, was for $9,486.52 and $89 costs, or a total of $9,575.52. A motion for a new trial was denied on December 23, 1952, and a notice of appeal was filed on December 31, 1952.

On January 2, 1953, this petitioner filed his undertaking to stay execution pending appeal. On January 6, 1953, this respondent excepted to the sufficiency of the sureties on that undertaking. A hearing on the qualification of the sureties was set for January 20, 1953, and continued to January 28th. It was then partially heard and continued to February 4, on which date the trial judge made an order finding the sureties insufficient.

On February 20, 1953, in attempted compliance with section 948 of the Code of Civil Procedure, this petitioner deposited $9,575.52 in cash with the clerk of the court in lieu of the undertaking and on that date the trial judge signed an order staying execution of the judgment until after determination of the appeal, with a further order setting aside and recalling any writ of execution theretofore issued. On the same day, February 20th, this respondent procured from another judge of the same court an order vacating and set[851]ting aside this order of the trial judge staying execution and recalling any writ issued. Thereafter, this respondent caused another writ of execution to be issued and levied upon the money thus deposited in court by this petitioner.

The petition herein alleges, among other things, that this respondent is a resident of the State of Wisconsin and has no property in this state; that his counsel has expressed the intention of obtaining possession of the money and sending it to the respondent in Wisconsin; that the respondent is indebted to the State of California in an amount in excess of $2,300 for unpaid taxes; that under a claim of secondary liability the State of California has caused liens to be placed on the petitioner’s property; and that the petitioner is informed and believes that the respondent is insolvent.

An order to show cause was issued by this court, including an order suspending all further proceedings on said judgment until the further order of this court, and commanding the judges, clerks and officers of the superior court to retain and safely keep the sum of $9.575.52 thus deposited by this petitioner until the further order of this court. In his answer and reply to the petition for a writ the respondent alleges that two or three of the dates above mentioned are wrong by a day or two, but this is immaterial here. He also denies that he intends to take the money out of the state or that he is insolvent. As affirmative defenses he alleges that on February 25, 1953, he filed cost bills after judgment amounting to $528.46, and that the order of the trial judge staying execution was properly set aside since the deposit of the money in court by this petitioner was not made within the time allowed by law, and since a sale of personal property under execution was in process of being completed before the order staying execution was issued. It is further contended that there is no showing that petitioner’s failure to perfect his undertaking in the trial court was caused by accident, surprise, inadvertence or excusable neglect, and no showing of the required good faith on the part of the petitioner in attempting to file his undertaking on appeal.