72 P. 922 | Cal. | 1903
This is an application for a supersedeas, based upon the following facts: The Electric Laundry Company prosecuted its action for unlawful detainer against William Bateman, petitioner herein, which action was founded upon an alleged breach of covenant and upon alleged default in the payment of rent. The cause was tried before a jury. The instructions of the court to the jury were upon the law covering both grounds of action. The jury returned a verdict in favor of plaintiff, and judgment followed accordingly, for the sum of $3,360 as treble rents, the sum of $163, as costs of suit, for the recovery of the demised premises, and for forfeiture of the unexpired term of the leasehold. From this judgment defendant appealed, filing an undertaking upon appeal in the sum of $300, but neither filing nor applying for an order fixing the amount of the undertaking to stay execution, as provided by section
Under this statement of facts it becomes apparent that the determination of the question presented necessitates a consideration of the nature of the action of the Electric Laundry Co. v. Bateman, the character of the judgment therein rendered, and to this extent the merits of the principal appeal, the appeal from the judgment, which is not yet regularly before this court. But petitioner cannot complain of this, since having invoked the aid of the court for his relief, in granting or withholding it, all matters pertinent to that consideration and properly presented, as here, by the answer of respondent, must come under review.
From a reading of the pleadings, of the instructions of the trial judge to his jury, and of the judgment which followed that jury's verdict, it is plain that the action was, as above stated, for the recovery of the demised premises after default in the payment of rent, and after breach of another material covenant. It is equally plain, therefore, that the court was misled upon the ex parte application in receiving the amount of rent, with interest and costs, and upon its reception ordering satisfaction of the judgment and restoration of the premises *143
to the defendant. It is where the proceeding is in unlawful detainer after default in the payment of rent only that the defendant within five days after judgment, may pay into court for the landlord the amount found due as rent, with interest thereon and costs, and, so satisfying the judgment, be restored to his estate. (Code Civ. Proc., sec.
The ex parte order of the court having been erroneously and improvidently made, to the substantial injury of the rights of the prevailing party, it was clearly the duty of the court to set that order aside, as, after a full hearing, it did. What, then, is the effect of an appeal from the order after final judgment which vacates the order for the satisfaction of judgment so improvidently made? The judgment in the Electric Laundry Co. v.
Bateman directs the payment of a specified sum of money ($3,523), and the execution thereof cannot be stayed unless defendant shall give a stay-bond in the sum of $7,046. (Code Civ. Proc., sec. 942.) The judgment further directs the delivery of possession of real property, and the execution of this judgment cannot be stayed unless defendant gives a stay-bond in such sum as the court may direct as indemnity against prospective waste and to secure the full value of the use and occupation of the premises pending the appeal. (Code Civ. Proc., sec. 945.) The action being in unlawful detainer, "an appeal by the defendant shall not stay proceedings upon the judgment, unless the judge or justice before whom the same was rendered so directs." (Code Civ. Proc., sec.
It appears, therefore, — 1. Upon the face of the record, and from an inspection of the judgment-roll, that the order for satisfaction of judgment was an order in excess of the jurisdiction of the court, and therefore void, because such order can be made only when the judgment is for default in the payment of rent, and this action and this judgment were for other breaches of covenants as well. The order being therefore void, and this appearing from inspection of the record, it could have been disregarded in all further proceedings in the case, though it was proper to vacate it, and so relieve the record from possible embarrassment. No rights whatever can be acquired by a party litigant under such a void order.
2. It appears that the order for satisfaction of judgment was not only improvidently made, but that the court, by the affirmative action of defendant, was misled into the making of it. It is the inherent right of the court within seasonable time, and of its own motion, to rectify such errors, and the litigant who has misled the court and provoked the error will not be heard to complain of its rectification.
3. Even if the order of the court here appealed from were not an order for the vacation of an order in itself void, but from an order which was merely erroneous, or even valid, still the effect of the appeal from it is not to revive the former vacated order. The judgment stands precisely as though the order satisfying it had never been made, and the party in whose favor it has been given may proceed upon it, so far as this matter is concerned, at the sole peril of the result of the appeal from this last order. The case is the converse of that of the Estate of Crozier,
4. In the absence of a direction from the trial judge, this court has no power to order a supersedeas in such a case as this.(Cluness v. Bowen,
For the foregoing reasons the application for supersedeas, or prohibition, or mandate, is denied.
McFarland, J., Van Dyke, J., and Lorigan, J., concurred.
Shaw, J., concurred on the third and fourth points stated in the opinion and in the judgment.
Angellotti, J., concurred with Shaw, J.
Rehearing denied.