98 Cal. 625 | Cal. | 1893
This is an original application for a writ staying proceedings in the court below upon a judgment during the pendency of an appeal therefrom to this court. The appellant has given the ordinary undertaking on appeal from the judgment required by section 941 of the Code of Civil Procedure.
The application must be granted. It would have been entirely proper under the pleadings in the action to have entered a judgment in favor of plaintiffs for the amount found to be due them upon the accounting, and upon such a judgment the plaintiffs would have been entitled to an execution against all property of the defendant, as upon an ordinary judgment for the recovery of money; but the judgment actually given seems to be of a different character. After reciting the amount due from the defendant, Thomas P. Painter, to the partnership of which he and Jerome B. Painter, now deceased, and represented in this action by plaintiffs as his executors, were members, the court in the decree appealed from proceeded to adjudge that plaintiffs “are entitled to and shall have and receive from said Theodore P. Painter, defendant (in accordance with the terms and provisions of this judgment and decree), personally .... the sum of $14,337.82.” The decree then makes this sum a lien upon that defendant’s interest in the partnership property, and further directs that such interest be sold “to realize and pay the said amount of $14,337.82 to said plaintiffs,” and if such interest be not sufficient for that purpose, “ then upon the ascertainment of the deficiency, that a judgment for such deficiency shall be docketed for such balance, and entered against said Thomas P. Painter personally, in favor of plaintiffs,” and
The effect of this decree is clearly to postpone the right of plaintiffs to a personal judgment against the defendant, Theodore P. Painter, for the recovery of the money found to be due from him to the plaintiffs, as representatives of the deceased partner, until such time as the interest of the defendant in the partnership property has been sold or appropriated, as in the decree provided, and then such personal judgment shall only be for the deficiency appearing after the application of such property or its proceeds to the satisfaction of said indebtedness. Until a judgment for such deficiency has been entered, there will be no personal judgment against the defendant directing the payment of the money, within the meaning of section 942 of the Code of Civil Procedure. In so far as the decree directs the sale of real property for the satisfaction of the lien therein declared, no undertaking to pay the deficiency is required in order to stay its execution, because such lien was not created by mortgage, and it is only in such case that an undertaking to pay the deficiency is required by section 945 of the Code of Civil Procedure. This was so held in England v. Lewis, 25 Cal. 354, in construing section 352 of the old Practice Act, which contained similar provisions to those found in section 945 of the Code of Civil Procedure. It was there said: “ Where the sale is directed for the purpose of satisfying any lien other than a mortgage lien, the undertaking need not provide for the payment of any deficiency which the judgment may direct. To this extent the statute discriminates in favor of mortgage, and against all other liens.”
It follows from these views that the defendant is entitled to a writ staying the execution of the judgment appealed from, until the determination of such appeal.
Application for writ staying execution granted.