115 Cal. 279 | Cal. | 1896
At the annual election for directors of the San Francisco & North Pacific Railway Company, held in February, 1896, certain votes offered in favor of Sidney V. Smith, as one of the directors, were rejected by the chairman of the meeting, and at the close
The effect of an appeal from the judgment, upon the judgment appealed from, is a matter of statutory regulation, and as this effect is to be determined by a construction of the statutes under which the appeal is taken, the decisions in other states upon statutes differing from our own are not entitled to a controlling consideration. Sections 942-45 of the Code of Civil Procedure provide a mode by which the “execution” of the judgment or order appealed from may in certain cases be stayed until the determination of the appeal; and section 949 of the Code of Civil Procedure provides that, “in cases not provided for” in these sections, the perfecting of an appeal by giving the three hundred dollar undertaking “stays proceedings in the court below upon the judgment or order appealed from,” except in certain designated cases. As the present case is not provided for in any of the preceding sections, it follows that the appeal had the effect to stay all proceedings in the court below “upon the judgment.” While the judgments or orders referred to in sections 942-45 are such as direct some act to be performed by the appellant, or require some process for their enforcement, the foregoing provision of section 949 includes not only judgments of this character, but also those which are self-executing. To the extent that a self-executing judgment is effected in accordance with its terms, and requires no proceeding for its enforcement, an appeal therefrom does not impair this effect, except that while the appeal is pending it is not available as evidence of the facts adjudged. The provision in the section that the appeal stays all proceedings upon the judgment “in the court below” does not restrict its effect elsewhere. In Dulin v. Pacific etc. Coal Co., 98 Cal. 304, the court had decided that Dulin was elected a director instead of Clugston, and an appeal was taken from this judgment. After the appeal Dulin was allowed by the other directors to take his
The provision in section 949, by which an appeal does not stay proceedings upon the judgment “where it adjudges the defendant guilty of usurping or intruding into or unlawfully holding public office, civil or military, within this state,” authorizes the construction that proceedings upon the judgment are stayed when it affirms the right of the plaintiff to any office which is not “public.” A director in a private corporation cannot be said to hold a public office. This provision in the section is in harmony with section 806 of the Code of Civil Procedure, and is applicable to such “public
The action of. the superior court in the present case was a proceeding “upon the judgment” from which the appeal had been taken, and was instituted for the purpose of enforcing a compliance therewith. By the judgment it was declared that Smith had been elected a director and was entitled to exercise the office. It was by reason of the refusal of Foster and other directors to allow him to exercise this office that the proceedings now under review were taken by the superior court, and the action of that court was based upon Foster’s disregard of the judgment. The injunction, in the judgment, against the interference with Smith’s right to act as a director was but ancillary to the judgment determining that he had such right, and was merely incidental thereto. Although preventive in form, it "was, in effect, mandatory, as it required Foster and the other directors to recognize Smith as one of their number, and to refuse to recognize Lilienthal. As that portion of the judgment declaring that Smith was elected was suspended by the appeal, the injunctive portion of the judgment, being merely incidental thereto, was also suspended, and the power of the court to enforce any portion of its judgment by inflicting punishment for its violation was stayed. An enforcement of this portion of the judgment would operate to carry the decree into effect, and would change the relative positions of the parties from those existing at the time the decree was entered, and might render a reversal of the judgment entirely ineffectual.
The order is annulled.
Van Fleet, J., McFarland, J., Henshaw, J., Temple, J., and Beatty, C. J., concurred.