206 P. 993 | Cal. | 1922
A judgment was rendered against the appellant in the justice's court presided over by the respondent, *710 J. Walter Hanby, for the slim of $74.67. She gave notice of appeal to the superior court on both the law and the facts and gave a bond for costs in the sum of $100. She gave no bond for a stay of proceedings as required by section 978 of the Code of Civil Procedure, and claims that no such bond is necessary when the appeal is on both the law and the facts. An execution was issued on the judgment by the justice of the peace after the appeal was taken and levied upon a claim of $20.19 due the appellant. Thereupon the appellant brought this action in the superior court to enjoin the respondent justice of the peace and the respondent constable from enforcing the judgment. The superior court denied the appellant's prayer for an injunction and she takes this appeal from that judgment.
It is conceded that, if the appeal had been on the questions of law alone, the execution of the judgment would not be stayed without a stay bond in double the amount of the judgment (Rushton v. Reeve,
This construction was placed on a similar provision of the code of Idaho by the supreme court of that state (Wilson v. Doyle,
The legislative history of section 978 of the Code of Civil Procedure also points to this construction. In 1850 the legislature in "An Act to regulate proceedings in Courts of Justices of the Peace in civil cases," passed April 10, 1850 (Stats. 1850, pp. 179, 186), provided for a stay bond upon appeals from the judgment of a justice of the peace in section 74 of such law as follows: "No appeal shall operate as asupersedeas to any execution issued on the judgment, unless the defendant shall file with the Justice a bond, with two sufficient sureties to be approved by such Justice, in a penalty double the amount of the judgment, inclusive of interest and costs, payable to the appellee, conditioned that the appellant will prosecute his appeal to effect, or that failing therein, he will pay and satisfy such judgment as may be rendered against him by the County Clerk. In the absence of the appellant, such bond may be signed by his sureties alone."
Section 75 of that statute (Stats. 1850, p. 186) provided for a cost bond as follows: "An appeal may be taken by any party, upon filing with the Justice a bond to the appellee, with surety to be approved by the Justice, conditioned for the payment of the costs of the appeal; but in such case the appeal shall not have the effect to stay execution."
Such appeals were made upon statements of the case and other papers (Stats. 1850, p. 186, secs. 73, 77), but the case was tried anew in the county court (Stats. 1850, c.
Without setting forth in further detail the various statutory changes regulating appeals from a justice's court, it is sufficient for present purposes to point out that the requirement of a stay bond in substantially its present form was enacted before the distinction was drawn between appeals from a justice's court on the law and on both law and facts (Stats. 1853, pp. 276, 280, sec. 15 amending sec. 628 of the Practice Act, supra), and when all appeals from the justice's court resulted in a trial anew (Stats. 1853, pp. 276, 277, sec. 7 amending sec. 366 of the Practice Act, supra); and that such requirement was continued in substantially unaltered form after the distinction between the two methods of appeal was introduced in 1854 (Stats. 1854, pp. 59, 70, supra).
[1] It is clear from this legislative history that there was no intention on the part of the legislature to require a stay bond in cases of appeal on questions of law alone, and not in cases of appeal on both law and facts. There seems no room for doubt from the terms of the code (sec. 978, Code Civ. Proc.) and from its legislative history that a stay bond is essential to prevent the enforcement of a justice's court judgment pending an appeal, but if this were a matter of doubt these provisions have been so construed for nearly three-quarters of a century and this practical and long-continued construction should not be overturned.
The justice's court, in the absence of a stay bond, had power to enforce the judgment by execution and for that purpose to require the defendant to submit to an examination on supplemental proceedings. The point that the claim *714 levied upon by the respondent constable is exempt from execution is not seriously pressed.
Judgment affirmed.
Lennon, J., Richards, J., pro tem., Lawlor, J., Sloane, J., Shaw, C. J., and Shurtleff, J., concurred.
Rehearing denied.
All the Justices concurred.