A.F.C., Inc. v. Brockett

BROWN (R.M.), J. The petitioner is one of the attorneys of record for the appellant. He prays this court for a writ of supersedeas staying execution of the judgment of the trial court pending his appeal thereon.

On December 28, 1965, the trial court made its decision and signed a judgment on a third party claim of the respondent. It was filed at 11 a.m. on that day; on December 29th at approximately 4 p.m. it was entered and recorded in the Judgment Book.

The judgment provided that the subject of the third party’s claim, a Beechcraft airplane, was found to be the property of the respondent, subject to an interest of the defendant, R. W. Akers, in the sum of $1,863.85; it ordered the constable to release the airplane on payment of said sum or the posting of a surety bond approved by the court.

At approximately 2 p.m. on December 28th the third party claimant served a copy of said judgment on the constable, tendered to him that sum, and demanded release of the airplane. The constable executed a receipt for said sum and the airplane was removed by the third party claimant. After the time of the payment of the above sum and removal of the airplane the trial court on December 29th issued an order staying execution for five days. That stay came too late.

On December 30th the appellant filed its notice of appeal from said judgment.

Code of Civil Procedure, section 664, states, in part: “In no case is a judgment effectual for any purpose until entered.”

In Wilson v. Los Angeles County Employees Assn., 127 Cal.App.2d 285, 289 [273 P.2d 824], the court stated that it is the duty of the clerk to enter the judgment in the judgment book and until entered it is not effectual for any [108]purpose, that at any time before a judgment is entered a court may change its conclusion of law and enter a judgment different from that first announced, and that the entry of a judgment is the initial point from which rights arise thereunder for the commencement of various acts and for the tolling of other rights.

At the time that the constable acted upon the release of the airplane there was no effective stay. As said in Messenkop v. Duffield, 211 Cal. 222, at page 225 [294 P. 715]: “The effect of a supersedeas is not to undo what has already been done, but to hold matters in the same condition as they existed at the time the stay became effective. ’ ’