Opinion
Department One
Application in the Supreme Court for a writ of supersedeas to stay execution upon a judgment of the Superior Court of the City and County of San Francisco, pending an appeal therefrom. James M. Troutt, Judge.
COUNSEL:
The undertaking for costs and damages and against waste stayed the execution, the judgment not being one for the direct payment of money. (Code Civ. Proc., secs. 941, 945, 946; Englund v. Lewis , 25 Cal. 346, 354; Whitney v. Allen , 21 Cal. 236; Painter v. Painter , 98 Cal. 625; Gutzeit v. Pennie , 97 Cal. 485; Boob v. Hall , 105 Cal. 414; Central etc. Co. v. Center , 107 Cal. 194.) The action of the county clerk in the justification of the sureties cannot be reviewed. (See Boyer v. Superior Court , 110 Cal. 402.)
J. D. Sullivan, Herbert Choynski, Thomas A. McGowan, and F. H. Smithson, for Appellant.
H. H. Lowenthal, for Respondent.
As the decree directs the payment of money, the defendant must give a bond in double the amount of the judgment and costs to stay the execution. (Code Civ. Proc., sec. 942; Englund v. Lewis , 25 Cal. 337, 350, 355, 356.) The justification of the sureties showed that they were insufficient, therefore the undertaking is wholly insufficient, the appellate court having power to take cognizance of the proceedings upon justification. (Fox v. Hale etc. Min. Co ., 97 Cal. 353.)
JUDGES: Harrison, J. Garoutte, J., and Beatty, C. J., concurred.
OPINION
HARRISON, Judge
[48 P. 384]Motion for a writ of supersedeas .
A judgment was rendered in favor of the plaintiff that the defendant within ten days after its entry pay, satisfy, and discharge certain indebtedness existing in favor of the Anglo-Californian Bank, Limited, upon two promissory notes, amounting to five thousand dollars, held by it, and within said date procure a release of the plaintiff's intestate from liability on said notes; that in default thereof a certain parcel of real estate described in said judgment be sold by a commissioner who was appointed therefor, and that out of the proceeds thereof the amount of said notes be paid to said bank; and if said proceeds were insufficient, judgment for the balance be docketed against the defendant, and execution issue therefor. From this judgment the defendant appealed, and gave an undertaking in the sum of three hundred dollars for the costs of appeal, and a further undertaking in the sum of two thousand five hundred dollars, that amount having been fixed by the judge of the court which rendered the judgment, to the effect that the appellant would not, pending the appeal, commit, or suffer to be committed, any waste upon the real property directed to be sold. The plaintiff excepted to the sufficiency of the sureties on this undertaking, and upon their justification before the county clerk, upon notice therefor, that officer approved the undertaking and the sureties thereon. The present motion is for a writ of supersedeas, staying the execution of the judgment and all proceedings thereon pending the appeal, and is resisted by the plaintiff upon the ground that the appellant did not give an undertaking in double the amount of the judgment.
The provisions of section 942 of the Code of Civil Procedure, requiring an undertaking in double the amount of the judgment for a stay of its execution, "if the appeal be from a judgment or order directing the payment of money," is inapplicable to the present case. That section is applicable to a judgment which directs payment by the defendant of a specific amount of money, and which can be directly enforced by a writ of execution, but has no application to a judgment which may be satisfied in either of two or more modes, or which cannot be enforced against the defendant until after the plaintiff has exhausted another remedy, and where he is personally liable for only a deficiency in the proceeds of certain property which is primarily chargeable therefor. (Painter v. Painter , 98 Cal. 625; Boob v. Hall , 105 Cal. 413.) If the judgment direct the sale of real property, and the defendant is liable only in case of deficiency in the proceeds of such sale, the provisions of section 945 control, and by that section it is only when the judgment is for the sale of "mortgaged" premises that the undertaking must provide for the payment of a deficiency.
We cannot review the decision of the clerk upon the justification of the sureties before him. The statute has designated that officer as a tribunal for hearing and determining that question, and has provided no mode by which his conclusion may be reviewed. (Boyer v. Superior Court , 110 Cal. 401.) It is a general rule that where a fact to be determined rests upon conflicting testimony, or the weight of evidence, or the credibility of witnesses, the decision of the tribunal to whom it has been intrusted will be accepted as correct.
The motion for a writ is granted.