Bateman v. Superior Court

This is an application for a supersedeas, based upon the following facts: The Electric Laundry Company prosecuted its action for unlawful detainer against William Bateman, petitioner herein, which action was founded upon an alleged breach of covenant and upon alleged default in the payment of rent. The cause was tried before a jury. The instructions of the court to the jury were upon the law covering both grounds of action. The jury returned a verdict in favor of plaintiff, and judgment followed accordingly, for the sum of $3,360 as treble rents, the sum of $163 as costs of suit, for the recovery of the demised premises, and for forfeiture of the unexpired term of the leasehold. From this judgment defendant appealed, filing an undertaking upon appeal in the sum of $300, but neither filing nor applying for an order fixing the amount of the undertaking to stay execution, as provided by section 1176 of the Code of Civil Procedure. Thereafter defendant, by his counsel, and in the absence of the judge who tried and rendered judgment in the cause, appeared before another judge of the superior court, and paid into court the sum of $1,312, the amount of rent due, together with interest and costs. Representation was made to

Under this statement of facts it becomes apparent that the determination of the question presented necessitates a consideration of the nature of the action of the Electric Laundry Co. v. Bateman, the character of the judgment therein rendered, and to this extent the merits of the principal appeal, the appeal from the judgment, which is not yet regularly before this court. But petitioner cannot complain of this, since having invoked the aid of the court for his relief, in granting or withholding it, all matters pertinent to that consideration and properly presented, as here, by the answer of respondent, must come under review.

From a reading of the pleadings, of the instructions of the trial judge to his jury, and of the judgment which followed that jury’s verdict, it is plain that the action was, as above stated, for the recovery of the demised premises after default in the payment of rent, and after breach of another material covenant. It is equally plain, therefore, that the court was misled upon the ex parte application in receiving the amount of rent, with interest and costs, and upon its reception ordering satisfaction of the judgment and restoration of the prem

The ex parte order of the court having been erroneous'y and improvidently made, to the substantial injury of the rights of the prevailing party, it was clearly the duty of the court to set that order aside, as, after a full hearing, it did. What, then, is the effect of an appeal from the order after final judgment which vacates the order for the satisfaction of judgment so improvidently made? The judgment in the Electric Laundry Co. v. Bateman directs the payment of a specified sum of money ($3,523), and the execution thereof cannot be stayed unless defendant shall give a stay-bond in the sum of $7,046. (Code Civ. Proc., sec. 942.) The judgment further directs the delivery of possession of real property, and the execution of this judgment cannot be stayed unless defendant gives a stay-bond in such sum as the court may direct as indemnity against prospective waste and to secure the full value of the use and occupation of the premises pending the appeal. (Code Civ. Proc., sec. 945.) The action being in unlawful detainer, ‘ ‘ an appeal by the defendant shall not stay proceedings upon the judgment, unless the judge or justice before whom the same was rendered so directs.” (Code Civ. Proc., sec. 1176.) In this case there was no direction by the judge for a stay of proceedings, no undertaking to stay the execution of the judgment was ever given, or sought to be given, but by merely taking an appeal from this order the defendant seeks to accomplish a result which, under the code, can only be obtained after a careful preservation of the rights of the prevailing litigant, in the manner there prescribed.

2. It appears that the order for satisfaction of judgment was not only improvidently made, but that the court, by the affirmative action of defendant, was misled into the making of it. It is the inherent right of the court within seasonable time, and of its own motion, to rectify such errors, and the litigant who has misled the court and provoked the error will not be heard to complain of its rectification.

3. Even if the order of the court here appealed from were not an order for the vacation of an order in itself void, but from an order which was merely erroneous, or even valid, still the effect of the appeal from it is not to revive the former vacated order. The judgment stands precisely as though the order satisfying it had never been made, and the party in whose favor it has been given may proceed upon it, so far as this matter is concerned, at the sole peril of the result of the appeal from this last order. The case is the converse of that of the Estate of Crozier, 65 Cal. 332 , where it is said: “The effect of an appeal from an order setting aside a judgment is not to revive the judgment. The judgment no longer exists, so far as the assertion of any rights under it is concerned, until it shall be brought into force again by a reversal of the order setting it aside. . . . The code does not provide that an order appealed from shall cease to exist—be annulled—but that it cannot be further enforced by a proceeding upon it. ’ ’

4. In the absence of a direction from the trial judge, this court has no power to order a supersedeas in such a case as this. (Cluness v. Bowen, 135 Cal. 660 .)

McFarland, J., Van Dyke, J., and Lorigan, J., concurred.

Shaw, J., concurred on the third and fourth points stated in the opinion and in the judgment.

Angellotti, J., concurred with Shaw, J.

Rehearing denied.