Brown v. Friesleben Estate Co.

California Court of Appeal Feb 1, 1956 No. Civ. No. 8920Published

Before: Peek

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Holding. The court held that the 1955 amendment to Code of Civil Procedure section 948 could not be applied retroactively to an appeal perfected before the amendment's effective date, and that the trial court lacked jurisdiction to require additional security or enforce the judgment after the appeal was perfected.

Issues

Whether the 1955 amendment to Code of Civil Procedure section 948 applies retroactively to an appeal perfected prior to its effective date.
Whether the trial court had jurisdiction to require additional security or enforce a judgment after an appeal was perfected and a stay of execution was granted.

Disposition. Writ of supersedeas issued; trial court orders vacated.

Quotations verified verbatim against the opinion

“It necessarily follows for the reasons stated that section 948, as amended, could not affect the statutory stay afforded petitioner upon the perfection of his appeal by compliance with that section as it read on July 15, 1955.”

“A duly perfected appeal divests the trial court of further jurisdiction in the cause and of power to act other than with respect to specified excepted or collateral matters”

PEEK, J. Petitioner Friesleben Estate Company seeks a writ of supersedeas to stay further proceedings in the first of the above-entitled matters, case Number 29411 in the Superior Court of Butte County, pending determination of petitioner’s appeal from the judgment previously entered therein in favor of plaintiff-respondent, and to rectify proceedings already taken by respondent in the second proceeding, Number 28996 in said court, to enforce said judgment-in alleged violation of a statutory stay.

The record, summarized chronologically, discloses the following :

June 3, 1955: Respondent Brown, as the assignee of Attorneys Ernest Clewe and Ray Manwell, obtained a judgment in action Number 29411 against petitioner estate company for attorneys’ fees in the sum of $10,000 plus interest to date of said judgment together with costs.

June 14, 1955: Respondent, as the judgment creditor, filed notice of motion for a lien pursuant to section 688.1 of the Code of Civil Procedure upon petitioner’s cause of action in the ease of Friesleben Estate Co. v. U. S. Fidelity and Guarantee Co. et al., being action Number 28996 in said county.

June 20, 1955: The court made an order staying execution of the judgment in action Number 29411 pending determi[3]nation of petitioner’s motion for a new trial and for 10 days thereafter. Respondent’s motion to impress a lien and petitioner’s motion for new trial were both set for hearing on July 1, 1955. Prior to July 1, the court at the request of petitioner’s counsel continued the hearing of the motion for a new trial from July 1 to July 6 but denied continuance of the hearing on the lien.

July 1,1955: The court made its order granting respondent a lien upon petitioner’s cause of action in case Number 28996 for the amount of the judgment in case Number 29411. On the same day the court vacated the order of June 20 granting petitioner a stay of execution in case Number 29411.

July 5, 1955: Petitioner filed a dismissal with prejudice in action number 28996.

July 6, 1955: Petititoner’s motion for a new trial in case Number 29411 was denied, as was his motion for a 10-day stay of execution.

July 14, 1955: Respondent Brown filed her notice of motion in action Number 29411 for an order vacating and setting aside the dismissal previously filed in action Number 28996 and for an order permitting her to intervene in said action to set the cause for trial and to prosecute it to final conclusion in the enforcement of the judgment lien previously granted to her.

Brown v. Friesleben Estate Co.

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