73 P. 1009 | Cal. | 1903
Lead Opinion
This is an application for a writ of supersedeas.
In the superior court of San Diego County, on July 7, 1897, an action was begun, entitled Free Gold Mining Co. v. James Spiers et al. Charles W. Pauly was appointed receiver, *83
and on June 21, 1902, an order was duly and regularly made settling his account current as receiver, and directing him to pay out of the moneys in his hands, as such receiver, certain claims for expenses incurred by Isaac Trumbo, a former receiver in the action, amounting to over forty-nine thousand dollars. On October 10, 1902, the petitioner herein appeared and asked leave of the court to file a petition in intervention in the action, which was afterwards denied by the court; but as it does not affect the present proceeding, it need not be further noticed. On February 6, 1903, it again appeared in the said action and moved the court to vacate the order of June 21, 1902, settling the receiver's account and directing the payment of the claims, which motion was dismissed by the court. This, in legal effect, was the equivalent of a denial of the motion. (Davis v. Hurgren,
Section 949 provides that in all cases not provided for in sections 942, 943, 944, and 945 the perfecting of the appeal by giving the three-hundred-dollar undertaking mentioned in section 941, "stays proceedings in the court below upon the judgment or order appealed from." Here the order appealed from is the order of February 6, 1903, refusing to vacate the former order directing the payment by the receiver of the claims. The petitioner contends that the appeal from this latter order relates back to and stays proceedings upon the former order. In support of this contention it cites the cases of Fulton v. Hanna,
The decision might have been more satisfactory, and the logical results would have been less troublesome, if the court had declined to give the relief upon this theory as to the nature of such an appeal, and had adopted the policy of itself giving the stay of proceedings under its inherent power to preserve to a party the fruits of an appeal of which it has jurisdiction, by ordering a stay of proceedings upon the giving of a bond sufficient to protect the adverse party. But *85 the rule, as applied to such appeals, is settled by long acquiescence and repeated subsequent affirmations of its existence, and, as it certainly tends to secure substantial justice, we have no wish or design to disturb it.
The conditions and circumstances affecting those cases are so different from those affecting the present case that we do not feel justified in extending the rule so as to include cases like the one under consideration. The present appeal is from an order denying a motion to vacate a former order. The former order thus attacked directed the payment of a large sum of money, amounting to nearly fifty thousand dollars. And, of course, similar orders in other cases might involve much larger sums. The appeal is perfected by the giving of an undertaking in the paltry sum of three hundred dollars, which is all the security the respondent can obtain for all costs and damages that he may suffer by reason of the appeal and the delay consequent thereon. The item of interest on the money, to which the adverse party would be entitled if the appeal is unsuccessful, during the time required to dispose of the appeal, would alone amount to many times the amount of the undertaking. Under the ruling in Fulton v. Hanna,
The practice also is different. Upon the reversal of an order denying a new trial, the uniform practice of this court is to vacate the judgment, grant the new trial, and remand the cause for a retrial. Upon the reversal of an order refusing to vacate a former order, the practice generally is not to directly vacate the former order, but to remand the cause, with directions to the court below to set aside the former order. (People v. Grant,
Under these circumstances we are of the opinion that the case should be decided upon the strict letter of the statute. Under section 949 of the Code of Civil Procedure upon an appeal from an order of this character, it being a case not provided for in other sections, the giving of an undertaking for three hundred dollars "stays proceedings in the court below upon the order appealed from." It does not provide that the giving of the undertaking shall stay proceedings upon all former orders made in the case, nor that the stay upon the second order shall relate back to and operate upon proceedings under the first order. The only effect is, that if there can be any proceedings under the order refusing the motion to vacate, which is the "order appealed from," such proceedings are stayed by the appeal.
The petition for a writ of supersedeas is denied.
Angellotti, J., Lorigan, J., Van Dyke, J., McFarland, J., and Henshaw, J., concurred.
Rehearing denied.
Beatty, C.J., dissented from the order denying a rehearing and filed the following opinion on the 2d of October, 1903: —
Dissenting Opinion
I dissent from the order denying a rehearing and from the judgment which now becomes final. The distinction which the court endeavors to make between this case and Green v. Hebbard,
The assumption contained in this paragraph is absolutely opposed to what this court has several times decided.
In Estate of Schedel,
This opinion was followed in Pennie v. Superior Court,
Under these decisions it is clear that if this appellant had been made a party to the proceeding against the receiver, so that it could have appealed directly from the order, proceedings thereon would have been stayed by the ordinary three-hundred-dollar bond.
This being so there is no reason why, in view of the principle of Green v. Hebbard,
The principle of the decision in Green v. Hebbard,
This doctrine heretofore sanctioned by our published decisions, and by our practice in motions for supersedeas since decided from the bench, seems to me perfectly reasonable and just, and I fail to discover any reason in the present opinion of the court for holding that the same appeal taken in one form is to be burdened with a condition to which it is not subject when taken in a different form.