78 P. 22 | Cal. | 1904
This is an application for supersedeas upon the giving of the ordinary undertaking of three hundred dollars on an appeal from a judgment in an action brought by J.C. Cullen, as assignee of John R. Aitken, against the petitioner, Mary S. Rohrbacher. The action of Cullen v. *632 Rohrbacher is founded upon a promissory note made and executed by the defendant therein, Rohrbacher, bearing date March 20, 1899, and payable to the order of John R. Aitken, for the sum of $3,250 six months after the date thereof, and as collateral security for the payment of said note, the maker thereof, Mary S. Rohrbacher, transferred and deposited with said Aitken, by way of pledge, a certificate of the capital stock of the Sunnyside Land Company, and also a certain order of said superior court in the matter of the estate of Philip Rohrbacher, deceased, for family allowance, of three hundred dollars per month during the progress of the settlement of the said estate. It is found by the court below as a conclusion from the facts in the case, that the plaintiff in said action have judgment against the defendant, petitioner herein, for the sum of $4,199.16 "and a decree of this court foreclosing the pledged property described in the complaint, and for a sale of said property to safisfy the liens thereon," and by the decree R.H. Fitzgerald was appointed commissioner for the purpose of making the said sale.
To the petition filed herein respondents interposed a general demurrer. The question presented, therefore, is whether upon the facts stated in the petition the case falls within section 943 of the Code of Civil Procedure, as claimed by the respondent. That section provides, among other things, that if the judgment or order appealed from direct the assignment or delivery of documents or personal property, the judgment is not stayed unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be given in the amount to be fixed by the court, to the effect that the appellant will obey the order of the appellate court upon the appeal; or if the judgment or order appealed from direct the sale of personal property upon the foreclosure of a mortgage thereon, the execution of the judgment or order cannot be stayed on appeal unless an undertaking be entered into in such amount as the court or judge thereof may direct, to the effect that the appellant will on demand deliver the mortgaged property to the officer, if the judgment be affirmed, etc. This, however, was not a mortgage of personal property, but was a pledge, — that is, a delivery of the certificate of stock and an assignment of the *633
order, — which was all that could be done on the part of the defendant in said action to transfer and assign the said property as security for said indebtedness. As stated in Pennie v.Superior Court,
The certificate of stock and order in question were personal property, and as such the former may be transferred by the owner. (Civ. Code, secs.
Under the facts in the case the petitioner is entitled tosupersedeas, and the writ will accordingly issue.
Shaw, J., Angellotti, J., McFarland, J., Beatty, C.J., and Lorigan, J., concurred.