PALMER v. FIX, 203 Cal. 365 (1928)

264 P. 255

FRED PALMER et al., Respondents, v. M.J. FIX et al., Appellants.

Docket No. L.A. 10254.Supreme Court of California. In Bank.
February 9, 1928.

APPLICATION for a Writ of Supersedeas directing the Superior Court of Los Angeles County to stay execution on a judgment pending appeal. Walter S. Gates and Charles S. Burnell, Judges. Writ granted.

The facts are stated in the opinion of the court.

John A. Jorgenson, C.H. Tyler and Chas. H. Sherrick for Petitioners.

Verge Cooney and Arthur F. Collins for Respondents.

RICHARDS, J.

This is an application for a writ of supersedeas. Plaintiffs commenced an action against the defendants in the superior court, in and for the county of Los Angeles, to recover from the defendants the sum of $3,571, with interest and costs, claimed to be due under a certain contract. The defendants filed an answer denying said indebtedness and also filed a cross-complaint, in which they alleged the breach of said contract by plaintiffs, and

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sought to recover therefor in the sum of $30,000. At the time of filing said cross-complaint the defendants caused an attachment thereon to be issued and levied upon certain real estate belonging to one of the plaintiffs. Upon the trial of the cause the court, on or about October 10, 1927, rendered and entered its judgment in favor of the plaintiffs for the sum of $3,571.88 and costs, and against the defendants on their cross-complaint, which judgment ordered a dismissal thereof. On October 11, 1927, the defendants and cross-complaints filed with the county clerk a notice of appeal, and also and in connection therewith an undertaking to stay execution on said judgment, and also an undertaking to keep in force pending said appeal the attachment which had theretofore issued and been levied in said action. Thereafter, between said last-named date and November 7, 1927, a certain series of proceedings occurred in the trial court, and also in the district court of appeal, in and for the second appellate district, affecting the matter of the sufficiency of the defendants’ and cross-complainants’ undertaking to stay execution and preserve the lien of their attachment upon their said appeal, which finally resulted in the making of an order by the trial court purporting to disapprove the said undertaking or undertakings on account of the alleged failure of the sureties to justify thereon. It was and is the contention of the appellants herein that the trial court was not justified in making said order, in view of the proceedings already had in said court having to do with the justification of the defendants’ sureties upon their said undertakings on appeal. We do not deem it necessary to state in detail the nature and effect of said proceeding, nor shall we attempt to disentangle the snarl into which the court and the parties have apparently become enmeshed in consequence thereof. [1] The plaintiffs are entitled to good and sufficient undertakings to stay execution upon this appeal. The defendants are entitled to have the judgment against them upon this appeal stayed and also to have their attachment theretofore procured preserved pending their appeal upon giving good and sufficient stay bonds in the form and manner required by law.

It is therefore ordered that a writ of supersedeas issue herein staying execution upon the judgment in favor of the

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plaintiffs herein upon their original cause of action, and also for the preservation of the rights of the cross-complainants acquired by virtue of the attachment heretofore issued and levied herein upon their cross-complaint, upon the giving by the appellants of an undertaking or undertakings effectuating the foregoing purposes, and each or either of them, in the form and amount required by law, said undertaking or undertakings to be approved by the presiding judge of the superior court, in and for the county of Los Angeles, and filed in this court within thirty days from the date of this order.

Seawell, J., Shenk, J., Waste, C.J., Langdon, J., Preston, J., and Curtis, J., concurred.