64 Cal. 423 | Cal. | 1883
Lead Opinion
This is an application in this court by appellant Shepard for an order staying the operation of an injunction pending the appeal.
The court below in this case having adjudged on the trial, after full hearing, that the plaintiff was entitled to an injunction, it does seem to us that this court would be going very far in interfering to suspend the force of its judgment. Such action would have very much the appearance of taking A.’s property and handing it over to B., and referring A. for compensation to an action on a bond.
We are referred to Hill v. Finnigan, 54 Cal. 495. In that case, the appellant filed an undertaking to stay execution, the sureties were excepted to, and they failed to justify. This court on application allowed the appellant to file a stay undertaking. In relation to this it was observed that “the statute does not treat of undertakings in the Supreme Court, and we have no doubt but this court has an inherent power to secure to the appellant the fruits of a successful appeal, if it can be done without depriving the respondent of a substantial right.”
It will be found that the court had held, as the opinion shows, that the appellant had a right to file a stay undertaking under the statute. (See first point in syllabus of case.)
The excuse for not filing it previously, in accordance with the provisions of the statute, was satisfactory to the court, and acting under the general equity powers pertaining to every court, and
Of this application it may be observed that neither statute law nor law of any kind accords the applicant a stay such as is asked for on filing an undertaking or bond. It is different in that regard from the condition of the appellant in Hill v. Finnigan- and further, it having been on full hearing and trial adjudged that the plaintiff was entitled to the injunction to restrain the diversion by the moving party of the waters mentioned above, it would be depriving the respondent of a substantial right to suspend or interfere with the exercise of a right as to these waters solemnly decreed to him.
The application must be denied, and it is so ordered.
Morrison, C. J., and Myrick, J., concurred.
Concurrence Opinion
—It was early held in this State that an injunction is not dissolved or superseded by the taking of an appeal from the order granting it. (Merced Mining Company v. Fremont, 7 Cal. 130.) That case has not been overruled, and the statute, in respect of the question now raised, has not been substantially changed. The only question raised by the appeal is whether the injunction was properly granted, and that question must be determined upon the record. Until so determined the presumption is in favor of the correctness of the judgment of the court below. We could not grant this motion without at least modifying the judgment appealed from.
If the judgment be reversed, it will then be apparent that the appellant was deprived of the use of his property by the granting and continuance of the injunction. But if we grant this motion and finally affirm the judgment, it will be equally appar-ent that the respondent was deprived, in the mean time, of the use of his property.
There is nothing in this case which materially distinguishes
McKee, J., and McKinstry, J., concurred in the opinion of Mr. Justice Sharpstein.