116 Cal. 458 | Cal. | 1897
Motion for a writ of supersedeas.
A judgment was rendered in favor of the plaintiff that the defendant within ten days after its entry pay, satisfy, and discharge certain indebtedness existing in favor of the Anglo-Californian Bank, Limited, upon two promissory notes, amounting to five thousand dollars, held by it, and within said date procure a release of the plaintiff’s intestate from liability on said notes; that in default thereof a certain parcel of real estate described in said judgment be sold by a commissioner who was
The provisions of section 942 of the Code of Civil Procedure, requiring an undertaking in double the. amount of the judgment for a stay of its execution, “ if the appeal be from a judgment or order directing the payment of money,” is inapplicable to the present case. That section is applicable to a judgment which directs payment by the defendant of a specific amount of money, and which can be directly enforced by a writ of execution, but has no application to a judgment which may be satisfied in either of two or more modes, or which cannot be enforced against the defendant until after the plaintiff has exhausted another remedy, and where he is personally liable for only a deficiency in the proceeds of certain property which is primarily chargeable therefor. (Painter v. Painter, 98 Cal. 625; Boob v. Hall, 105 Cal. 413.) If the judgment direct the sale oi real property, and the defendant is liable only
We cannot review the decision of the clerk upon the justification of the sureties before him. The statute has designated that officer as a tribunal for hearing and determining that question, and has provided no mode by which his conclusion may be reviewed. (Boyer v. Superior Court, 110 Cal. 401.) It is a general rule that where a fact to be determined rests upon conflicting testimony, or the weight of evidence, or the credibility of witnesses, the decision of the tribunal to whom it has been intrusted will be accepted as correct.
The motion for a writ is granted.
Garoutte, J., and Beatty, C. J., concurred.