In Re Graves, 216 P. 386

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216 P. 386 | Cal. Ct. App. | 1923

Lead Opinion

This is an application for a supersedeas. By a judgment of the superior court for Los Angeles County, made January 22, 1923, petitioner was suspended from the practice of law for one year. From that judgment he has taken an appeal to this court, and now asks for a supersedeas to stay the judgment of suspension pending his appeal.

[1] This is not a case for the issuance of supersedeas. The judgment of suspension acts directly against petitioner without the necessity for process or proceedings of any kind for its enforcement. (Tyler v. Presley, 72 Cal. 290 [13 P. 856].) It is true that the power to issue the writ of supersedeas is inherent in an appellate court, but it will only be issued to restrain proceedings upon the judgment from which the appeal has been taken. Its effect is merely to stay proceedings for the enforcement of the judgment. It does not reverse, suspend, supersede, or impair the force of the judgment itself. That remains in all respects the same. [2] The general rule, therefore, is that supersedeas will not issue where the judgment does not command or permit any act to be done, or where it is not of a nature to be actively and affirmatively enforced by execution or otherwise. (Dulin v. Pacific Wood Coal Co., 98 Cal. 304 [33 P. 123]; Tyler v. Presley, supra;Hoppe v. Hoppe, 99 Cal. 536 [34 P. 222]; Taylor v. SuperiorCourt, 44 Cal.App. 23 [185 P. 994]; Wood v. Board ofCommrs., 50 Cal.App. 594 [195 P. 739].) Here the judgment of suspension is self-executing. There is no further action to be taken thereon by the court below, and consequently nothing upon which the supersedeas can act.

The application is denied.

Works, J., concurred.

Concurrence Opinion

I concur. During the argument counsel for petitioner insisted that, although supersedeas may not issue to suspend the operation of a self-executing judgment, it should issue in this case because a contempt proceeding might be instituted should he practice law during the pendency of this appeal. A contempt proceeding would be independent from, although of course an outgrowth of, the disbarment case. The possibility of such a *170 proceeding does not make the judgment of suspension any less self-executing, nor does it create a ground for the issuance of a supersedeas. (Wolf v. Gall, 174 Cal. 140 [162 P. 115].)