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Mannix v. Superior Court of S.F.

157 Cal. 730 Court Cal. Decision date 1910-05-26 Docket S. F. No. 5582 English

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p. 730
[S. F. No. 5582.
In Bank.
May 26, 1910.]
THOMAS MANNIX, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Headnote

Appeai, — Stay of Execution ;— Jurisdiction of Superior " Court.— Though after an appeal is perfected from a judgment of the superior court that court does not have general power to stay the execution, yet if upon such appeal execution has been stayed by a sufficient undertaking, the superior court has power to compel the sheriff to respect and observe the stay of execution given by the statute.
p. 731
Id.—Insufficient Bond—Order Stating Writ Not Presumed—Prohibition.—Where the bond on appeal is less than the amount of the judgment, the superior court has no authority to order a stay of execution; but it cannot be presumed that it would make such order, in the absence of any showing of facts, to sustain a petition for a writ of prohibition.
Id.-—Proposed Amendment of Petition for Prohibition — Proper Denial. — Held, that a proposed amendment to the petition for the writ of prohibition to prevent a stay of execution was properly denied where it merely proposed to allege that no such defective undertaking has been filed, and it merely has the effect to show, without further facts, that the lower court cannot be about to order a stay of execution, at least until such inadequate undertaking has been filed and an application for such stay of proceedings has been made to it.
Id.—Case for Prohibition Not Shown.—Upon the facts stated the ease does not call for the interposition of the authority of this court by way of prohibition.
APPLICATION for Writ of Prohibition to the Superior -Court of the City of San Francisco. John Hunt, Judge.
The facts are stated in the opinion of the court.
Naylor & Riggins, for Petitioner.

The application to amend the petition for a •writ of prohibition is denied.

After an appeal is perfected from a judgment of the superior court, that court does not have general power to stay the execution. It may be admitted, for the purposes of this case, that if, upon such appeal, an undertaking on appeal in double the amount is given as provided in section 942 of the Code of Civil Procedure, the superior court would have power to compel the sheriff to respect and observe the stay of execution thereupon given by the statute. We cannot suppose, however, even if it has such power, that the superior court would order the sheriff to stay proceedings on an execution to enforce a judgment for four thousand dollars upon the filing of an undertaking on appeal in the sum of $2666.66. Such an order would doubtless be without authority. But the proposed amendment shows that no such undertaking has been filed and hence that the lower court cannot be about to order a stay of the proceedings as apprehended, at least until such inadequate

p. 732
undertaMng has been filed and an application for such stay of proceedings has been made to it. Upon the facts stated, the case does not call for the interposition of the authority of this court by way of prohibition.