Anderson v. Anderson

123 Cal. 445 | Cal. | 1899

HARRISON, J.

Motion for a writ of supersedeas. In an action for divorce brought by the plaintiff, the court rendered its judgment denying the divorce, but awarded to her for the support of herself and two children the sum of eighteen hundred dollars per annum, payable in monthly installments of one hundred and fifty dollars each, declaring the same to be a lien upon all the real estate of the defendant within the state of California, and directed that a receiver be appointed to take the said real estate into his possession and management, and out of the net income thereof to pay to the plaintiff the amount of said alimony as it should accrue. Thereafter on the same day an order was made appointing a receiver of said real estate, with such instructions and authority. The defendant appealed from the judgment, and also from the order appointing a receiver, giving a bond of three hundred dollars in each appeal, and also an undertaking in the sum of fifteen thousand dollars for the purpose of staying the execution of the order appointing the receiver. Some months afterward the plaintiff caused a writ of execution to be issued upon the judgment, and levied upon certain moneys owing to the defendant, and the court, having refused upon the application of the defendant to recall the execution, the present application is made to stay the proceedings for the enforcement of the judgment pending said appeal.

The plaintiff, having caused the judgment awarding alimony to her to be collected and paid to her through a receiver appointed by the court for that purpose, is not entitled to have the judgment enforced by writ of execution against other estate of the defendant. The judgment does not direct the payment by the appellant of any money to her, but provides that the amount awarded her shall be collected by a receiver out of the rents and profits of the defendant’s real estate, and paid over to her by him as the same shall accrue. The case, therefore, falls within the provisions of section 949 of the Code of Civil Procedure, by which the giving of an undertaking in the sum of three hundred dollars “stays proceedings in the court below upon the judgment' or order appealed from.” (Pennie v. Superior Court, 89 Cal. 31; McCallion v. Hibernia etc. Soc., 98 Cal. 442; Painter v. Painter, 98 Cal. 625; Kreling v. Kreling, 116 Cal. 458.)

The fact that an appeal has been taken from the order appointing a receiver does not enlarge the rights of the plaintiff. Thát appeal and the effect thereof is independent of the appeal from the judgment. The attempt to collect the alimony by a writ of execution is a “proceeding upon the judgment,” and, pending the appeal, is stayed by giving the undertaMng required by section 941 of the Code of Civil Procedure.

The application for the writ is granted.

Garoutte, J., McFarland, J., Temple, J., Henshaw, J., and Beatty, C. J., concurred.

Rehearing denied.