Opinion
S. F. No. 11118.
May 8, 1924.
APPLICATION for a Writ of Supersedeas. Writ granted.
The facts are stated in the opinion of the court.
Wm. F. Herron for Petitioner.
Wm. R. Lowery and Sylvester Andriano for Respondent.
This is a petition for a writ of supersedeas. The appellant within due time perfected his appeal and filed an undertaking upon appeal with two sureties in the amount fixed by the court, two thousand five hundred dollars. Thereafter, the respondent having excepted to the sufficiency of the sureties, appellant served notice that they would justify before the court on a date therein specified. The sureties failed to appear and justify on that date because of a serious illness in the family of one of them, whereupon appellant applied to this court for a writ of supersedeas. Under the rule stated in Nonpareil Mfg. Co. v. McCartney, 143 Cal. 1 [ 76 P. 653], the appellant is not entitled to this writ as a matter of right, but we may properly, in the exercise of a sound discretion, grant him the writ upon such terms as will be just and will adequately protect the rights of the respondent. [2] We conclude that, under the circumstances, the writ should be so granted in order to preserve the status quo until the final determination of the action.
It is ordered that upon the filing by the petitioner with the clerk of this court, within twenty days, of a good and sufficient undertaking upon appeal in the sum of two thousand five hundred dollars, conditioned as required by law, and which shall have been first approved by a judge of the superior court in and for the county of San Francisco, at a hearing upon ten days' notice to the respondent, a writ shall issue as prayed for herein.
It is further ordered that in the meantime, during said period of twenty days, the execution of that portion of the judgment referred to in the petition herein be stayed.