Majority
p. 584[S. F. No. 1770. In Bank Aug. 14, 1899.] E. J. BALDWIN, Petitioner, v. SUPERIOR COURT, et cetera, et al., Respondents.
Headnote
Appeal from New Trial Obdeb—Undertaking to Stay Execution—Supersedeas—An undertaking in double the amount of a judgment for the recovery of money is sufficient to stay execution upon appeal from an order denying a new trial, though there is no appeal from the judgment; and a writ of supersedeas will issue from this court to prevent the plaintiff from enforcing the judgment pending such appeal.MOTION in the Supreme Court for a writ of supersedeas to stay execution upon the judgment pending an appeal from an order of the Superior Court of the City and County of San Francisco, denying a new trial. John Hunt, Judge.
The facts are stated in the opinion of the court.
Byron Waters, for Petitioner.
T. J. Roche, and Linforth & Whitaker, for Respondents.
This is a petition for a writ Of supersedeas to stay all proceedings upon a certain judgment against petitioner pending an appeal. The judgment was rendered in the superior court against petitioner, and in favor of one Roche, for a certain sum of money; petitioner appealed from an order denying his motion for a- new trial and gave an undertaking in double the amount of the judgment, but has not appealed from the
p. 585
judgment; and the plaintiff in the action is proceeding to enforce the judgment by execution, notwithstanding the undertaking, upon the theory that the execution of a judgment directing the payment of money cannot he stayed upon an appeal from an order denying a new trial, where there is no appeal from the judgment itself. It was held otherwise, however, in the recent case of Holland v. McDade, ante, p. 353, and upon the authority of that case the petition must he granted.
Let the writ of supersedeas issue as prayed for in the petition.