Root, Neilson & Co. v. Bryant

54 Cal. 182 | Cal. | 1880

Department No. 2, by the Court (from the Bench):

The plaintiffs brought this action to foreclose a mechanics’ lien upon certain saw-mill property, and impleaded the London and San Francisco Bank as a party holding a - subordinate lien upon the same property. The action was tried, and a decree entered, by which it was "ordered that the property be sold, and that. Root, Reilson & Co. be first paid their claim in full out of the proceeds of the sale, and that the claim of the London and San Francisco Bank be paid out of the surplus, if any remained. The bank moved for a new trial, which was denied; and from that order and the judgment it has appealed to this Court. It is stipulated in the transcript, “ that a sufficient undertaking on appeal has been properly filed, and in due form.” The undertaking filed is the one prescribed by § 941, Code of Civil Procedure. The plaintiffs do not deem that sufficient to stay proceedings pending the appeal, and have caused an execution to issue, and delivered it to the Sheriff, with directions to proceed and sell the property under the decree. To prevent that, this motion is made on behalf of the bank, for an order staying proceedings pending the appeal.

This, in our opinion, is not a case provided for in §§ 942, 943, 944, or 945 of the Code of Civil Procedure, and therefore, the undertaking filed is sufficient to stay proceedings pending the appeal, as it does not appear that the property which the Sheriff is about to sell is perishable property.

The motion for an order staying all proceedings upon the judgment in said action, pending the appeal therefrom, is therefore granted.