212 P. 4 | Cal. | 1923
This is a petition on behalf of Jim Jackson and Elizabeth Jackson for a writ of supersedeas directed to the district attorney, clerk and sheriff of Sacramento County to restrain the execution of a judgment rendered against petitioners by the superior court of that county. Respondent has filed a demurrer to the petition, without briefs or authorities, and no question of fact is raised.
The judgment was rendered in an action instituted by the District Attorney of Sacramento County under the "Red Light Abatement Law" (Stats. 1913, p. 20), and ordered that petitioners refrain from maintaining certain prescribed premises for purposes of lewdness, assignation or prostitution, directed that the occupants thereof be removed and that the building be closed for the period of one year. From that judgment petitioners have appealed. They now allege that, notwithstanding their appeal, a writ of execution will be issued to the sheriff by virtue of section 949 of the Code of Civil Procedure, hereinafter considered, directing him to "remove all furniture, fixtures, musical instruments and other movable property from the said premises and building and sell the same in the manner provided in said judgment," and that the sheriff, unless restrained, will execute the judgment. It may be noted that it is not ordered by the judgment, as required by the statute, that the furniture, fixtures, musical instruments and other movable property be removed from the premises or sold. However, as the statute provides that the plaintiff's costs and the expenses of enforcing the judgment shall be paid out of the proceeds of such sale, it may be assumed such a sale will result from the enforcement of the judgment.
Prior to 1921 section 941 of the Code of Civil Procedure provided that "The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on appeal, or on a dismissal thereof, not exceeding three hundred dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. "Section 949, also amended in 1921, was as follows: "In cases not provided for in sections nine hundred and forty-two, nine hundred and forty-three, nine hundred and forty-four and nine hundred and *260 forty-five, the perfecting of an appeal by giving the undertaking or making the deposit mentioned in section nine hundred and forty-one, stays proceedings in the court below upon the judgment or order appealed from, except where it directs the sale of perishable property. . . ."
In 1921 (Stats. 1921, p. 193) section 941 was so amended as virtually to amount to its repeal as it formerly read, the section as amended having no reference to undertakings on appeal. To section 949 was added the following clause: "and except, also, where it adjudges a building or place to be a nuisance, and as a part of the judgment in the case orders and directs the closing of the building or place against its use for any purpose for any period of time." (Stats. 1921, p. 95.)
Petitioners contend this section is unconstitutional because it, in practical operation, destroys the right of appeal by making the judgment of the superior court final and that because of the amendment of section 941, providing for the giving of a bond on appeal, section 949 has become so uncertain as to be unenforceable.
[1] It was held in People v. Laine,
[2] Petitioners have cited Haight v. Gay,
[3] Nor can the contention that since the amendment of section 941, section 949 has become unintelligible be sustained. Under the methods of appeal provided before the year 1921, if the appeal was taken under sections 940 and 941, it was necessary for the appellant to file a bond of three hundred dollars for costs in order to perfect the appeal. The appeal then operated to stay all proceedings under the judgment by reason of the provisions of section 949, unless an additional bond was required under sections 942, 943, 944 or 945. Under the alternative method of appeal provided by section 941b, whereby an appeal might be taken by merely filing a notice with the clerk, it was held that an appeal bond was unnecessary (Theisen v. Matthai,
The effect of the repeal of section 941b and the amendment of section 940 was to make the mere filing of a notice with the clerk effective to take the appeal in all cases. By reason of the amendment of section 940 removing the requirement of a stay bond to perfect an appeal, section 941, prescribing the bond required, was no longer necessary. It having been in effect repealed by the amendment of section 940, the section numbered 941 was used for a different subject.
Section 949 was amended in 1921, as already pointed out, by the insertion of the provision that a stay of execution under section 941 was not applicable to a judgment for the abatement of a nuisance. Before its amendment, upon perfecting an appeal under section 940 and giving a bond under section 941, a judgment was stayed; upon perfecting an appeal under section 941b by giving the notice of appeal, a judgment was stayed without an appeal bond. (People v. Laine,
[4] As already indicated, this court, by the amendment to section 949, is not deprived of its authority to issue a writ of supersedeas to stay execution. It remains to consider whether in the exercise of its appellate jurisdiction in the case at bar it should issue such a writ, which does not issue of right, but only when in the judgment of the court it is necessary to protect the rights of the parties *263
on appeal. (Luckenbach v. Krempel,
The petition is denied.
Wilbur, J., Waste, J., Shaw, C. J., Lennon, J., and Ward, J., concurred.