Hulse v. Davis, 253 P. 136

253 P. 136 | Cal. | 1927

THE COURT.

Application for a writ of supersedeas. The applicant herein instituted an action against the above-named respondents on July 19, 1915, in the superior court of the county of Los Angeles. Judgment was entered in said action in favor of the applicant on January 28, 1916. On May 10, 1916, execution issued upon said judgment and was thereafter returned partly satisfied. No further proceedings were had or taken in the action until September 3, 1926, at which time, on an ex parte motion of counsel for the applicant and apparently without prior notice thereof having been given to the respondents, an order was made by the court below for the issuance of a second execution upon the judgment theretofore entered. Pursuant thereto a writ of execution was duly issued and levied. Thereafter, and on September 23, 1926, a temporary restraining order was entered by said court, on motion of the respondents, enjoining any further action or proceedings under and by virtue of said writ of execution. On October 5, 1926, the lower court made and entered an order vacating the prior order for the issuance of a writ of execution, recalling and quashing the writ issued pursuant thereto and denying further process of said court for the enforcement of the judgment. In accordance with this latter order the sheriff on October 9, 1926, released and discharged the property of respondents theretofore held in custodia legis. The applicant has appealed from the order quashing the writ of execution and pending the determination of said appeal a writ ofsupersedeas is sought "staying all proceedings in the above-entitled matter" and directing "that if the said sheriff has released from levy the property of the defendant . . . to re-levy thereon and keep the same intact until the determination of this appeal."

The respondents oppose the application on the ground that this is not a proper case for the issuance of a writ of supersedeas.

This court in the case of Imperial Water Co., v.Hall, 199 Cal. 556 [250 P. 394], recently had occasion to consider the nature, scope, and purpose of a supersedeas. A reading of the opinion in that case and the authorities cited and quoted from therein reveals that a writ of supersedeas may be granted in a proper case only to restrain and prevent theenforcement of a judgment or order by the court below or itsofficers pending an appeal therefrom. If the judgment or order appealed from is self-executing and "no process is required to be issued for its enforcement no supersedeas is allowed." (Tyler v. Presley, 72 Cal. 290 [12 P. 289, 13 P. 169]; Dulin v.Pacific Wood Coal Co., 98 Cal. 304 [33 P. 123]; ImperialWater Co. v. Hall, supra.)

In the instant case the order appealed from is complete and final in itself and no process of the court below is required to be issued for its enforcement, for it is settled that "when an execution is quashed, any levy made pursuant thereto falls with it, and any title to the property vested in the sheriff by the levy is defeated." (Wellington v. Sedgwick,12 Cal. 469, 475; Buffandeau v. Edmondson, 17 Cal. 436, 442 [79 Am. Dec. 139]; see, also, 11 Cal. Jur. 61, sec. 18.) If the sheriff, in violation of the court order, continues in possession of the property he does so unlawfully and without right, in the absence of some other process in his hands which would justify his action.

It is apparent, therefore, that an order quashing execution has an intrinsic effect and is self-executing. Process is not required for the enforcement of such an order and pending the determination of an appeal therefrom a writ of supersedeas may not properly be issued.

For the foregoing reasons the application for a writ ofsupersedeas is denied and the temporary stay heretofore granted by this court is hereby terminated and ended.