S & Q Construction Co. v. Haynie

SCHOTTKY, J. This is an application by S & Q Construction Company and Hartford Accident and Indemnity Company for a writ of prohibition or supersedeas to prevent enforcement of a money judgment in favor of M. D. Haynie.

S & Q was the contractor on a public construction project for the City of Stockton. Hartford was its surety on a bond furnished in accordance with the provisions of section 4200 et seq. of the Government Code. Haynie was a subcontractor on the project.

Haynie sued S & Q and Hartford to recover the balance allegedly due for work performed. In a separate action S & Q sought damages from Haynie for negligence in connection with a part of the contract not sublet to Haynie. The cases were consolidated for trial and recovery was in favor of Haynie in his action against S & Q and Plartford and also in S & Q’s action against Haynie.

Thereafter S & Q alone appealed from the judgment entered in each action. Hartford did not appeal from the judgment entered against it.

The petition filed in this court does not disclose that S & Q has complied with the provisions of section 942 of the Code of Civil Procedure requiring an undertaking to stay execution of a money judgment. Under such circumstances this court would not be warranted in ordering a stay of execution. “There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control. A corollary of this rule is that the Legislature may impose any condition or restriction upon the granting of a stay of execution pending an appeal.” (Trede v. Superior Court, 21 Cal.2d 630, 634 [134 P.2d 745].)

Supersedeas may not be granted Hartford because it may only be allowed in connection with an appeal actually taken. (Ex parte Ralston, 119 U.S. 613 [7 S.Ct. 317, 30 L.Ed. 506]; Solomon v. Solomon, 110 Cal.App.2d 660 [243 P.2d 556], and eases cited therein.)

Neither party has asserted sufficient facts to warrant the issuance of a writ of prohibition even if this were a matter in which prohibition is a proper remedy. Each had an adequate remedy by appellate procedures which has not been [651]pursued. Under such circumstances it is improper to issue a writ of prohibition. (3 Witkin, California Procedure, pp. 2506-2510.)

The stay order issued in the case of S & Q Construction Company v. M. D. Haynie et al., which is numbered 71699 on the docket of the Superior Court of the County of San Joaquin, is discharged; and the stay order issued in the case of M. D. Haynie v. S & Q Construction Company, a corporation, and Hartford Accident and Indemnity Company, a corporation, which is numbered 72364 on the docket of the Superior Court of the County of San Joaquin, is discharged.