Bryan v. Berry

| Cal. | Jul 1, 1857

Murray, C. J., delivered the opinion of the Court—Burnett, J. concurring.

This case was decided at the present term, not upon the merits, but upon the ground that there was no undertaking on peal. As no appeal ie effectual for any purpose without an undertaking, the appellant must show affirmatively that the undertaking required was given. In this case, the transcript did not show that such undertaking was filed, but upon an application for a re-hearing that fact is shown by the affidavit of the counsel of defendant, Berry, and by the certificate of the clerk, and that the undertaking, after having been filed, was lost. To'show that the undertaking is filed, the certificate of the clerk will be prima facie sufficient, without inserting a copy, and if the respondent has any objections to make against the sufficiency of the undertaking, he should do so, by motion to dismiss the appeal before the case is submitted, and in support of his motion he may use a certified copy of the undertaking.

As the practice in this respect has not been settled, we think the case of the appellant should not be dismissed, under the circumstances. But hereafter, we shall expect the appellant to show by the certificate of the clerk that the undertaking has been filed in due time, and if not shown to have been filed, then we shall require the respondent to make his objection by motion to dismiss, and not for the first time in his brief.

This case was before this Court upon the merits, and was decided at the last October Term, and the remittitur sent down on the second of December, 1856. After the appeal was taken, the plaintiff caused an execution to issue against the property of all the defendants, as no sufficient undertaking had been filed by defendant Daniel M. Berry, to stay the execution. The execution was issued on the fifth day of July, 1856, returnable in forty days, .and was levied on the property of defendant D. M. B., on the seventh of July, and the property sold on the fifteenth, and the execution returned on the fourth of August, 1856. On the fourteenth day of July, one day before the sale, the defendant D. M. B., gave notice to the attorney of the plaintiff that he would, .at the next term of the District Court, make a motion to set aside the execution, and the levy made under it. The motion .was made on the thirtieth of September, 1856, and overruled .by the Court, and an order made by the Court upon the application of the plaintiff, amending the judgment-record nunc pro tunc. From the order overruling the motion to set aside the execution =and levy, and from the order permitting the amendment, the defendant, D. M. B., appealed on the eighteenth November, 1856.

We think the District Court did not err in overruling the motion to set aside the execution and levy. The notice that a motion would be made did not operate as a stay of proceedings. After giving the notice, the defendant should have procured an order staying the sale under the execution until his motion could have been heard. Greenup et al. v. Brown; Baird v. Farnum, Breese, 194, 303; Robinson v, Chisseldine et al., 4 Scam., 333,

Without such an order the proceedings must go on, and it was too late to move to set aside the execution after the sale, as a part of the property had been purchased by third persons not parties to the suit. The motion was to set aside the execution and levy, and the effect of this motion, if sustained, would have been to declare void the sales made of the property, as well that portion sold to third parties, as that portion sold to the plaintiff in the execution.

In the case of Day et al. v. Graham, (1 Gil. R., 435,) this question is very fully considered, the authorities reviewed and the correct doctrine laid down. In that case, the Court say:

“Upon these authorities we are of opinion that when the plaintiff in the execution is the purchaser, and before he conveys to another, the Court will set aside the sale, upon motion. But after he conveys to a third person," and when a third person becomes a purchaser, the Court will not determine in this summary way, questions which may affect the rights of others not before the Court, and without opportunity of explaining away those circumstances which might destroy his title.”

But in reference to the order permitting the amendment, we think there was error. The case was pending in this Court, on appeal, and the District Court had lost all power over the judgment. The right to issue the execution was not suspended by the appeal, but the right to amend the judgment appealed from was taken away.

It is insisted by the plaintiff, that as the judgment against defendant D. M. B. was reversed in this Court, and the judgment thereby destroyed, that the defendant had no right to appeal from the order permitting the amendment. But this objection is more plausible than real. The appeal from the order was taken Uovember 18th, and the case on appeal was not finally disposed of in this Court until the second of -December. And for the very reason that the judgment as it stood before the amendment, was reversed by the decision of this Court, it was proper that the defendant should appeal from the order changing the judgment pending the appeal. It is unnecessary to decide the question raised in the close of the defendant’s brief. The case of Stearns v. Arguella, goes far to settle the point raised.

For these reasons, that portion of the order made by the Court below permitting plaintiff to amend his judgment against the defendant D. M. Berry, is reversed, and the Court below will enter an order vacating the same. The appellant is entitled to the costs of this appeal.