People v. Piazza

This action was instituted under the “Red-light Abatement Act” (Stats. 1913, p. 20). The judgment rendered in the action declares a certain two-story building owned by defendant Piazza “to be a building where lewdness, assignation and prostitution was, at the timb of the filing of the complaint herein, carried on, and was then and there a public nuisance,” and, further, orders that the sheriff “be, and he is hereby authorized and directed forthwith to remove all occupants from said building and to remove all personal property therefrom and to keep said building closed for a period of one (1) year, or until released as provided by law.” Prom this judgment Piazza appealed. He thereupon filed his petition herein for a writ of supersedeas, alleging that the trial court “refused to stay execution on said judgment, upon the ground of want of jurisdiction so to do,” and that “unless a writ of supersedeas is granted staying execution on said judgment until the final determination of said appeal, petitioner will lose the sum of two hundred ($200.00) dollars per month in rental for said premises until the final determination of said appeal.” It is not contended that the appeal operates as a stay, but that this court has inherent power to issue the writ prayed for. In the case of People v. Laine, 177 Cal. 742 [ 171 Pac. 941 ], decided March 19, 1918, it was held that, under the provisions of section 949 of the Code of Civil Procedure, the part of the judgment therein which was similar to that under consideration here was “stayed by operation of the appeal.” In 1921 section 949 was amended, by adding the exception herein italicized, to read as follows:

“Stay of proceedings on perfecting appeal. Exception when building dedwred nuisance. In cases not provided for in sections nine hundred forty-two, nine hundred forty-three, nine hundred forty-four and nine hundred forty-five,

[1] This amendment was probably intended to, and in fact does, change the rule as announced in People v. Paine, supra. Notwithstanding the amendment, however, petitioner contends that this court has inherent power to grant the stay applied for, citing Rogers v. Superior Court, 158 Cal. 467 [ 111 Pac. 357 ], Southern Pac. Co. v. Superior Court, 167 Cal. 250 [ 139 Pac. 69 ], Halsted v. First Sav. Bank, 173 Cal. 605 [ 160 Pac. 1075 ], and Reed Orchard Co. v. Superior Court, 19 Cal. App. 648 [ 128 Pac. 9 , 18]. It is not necessary to decide whether the court has such power. If petitioner’s contention be conceded, the issuance or denial of the writ is discretionary. Since the legislature has provided that the appeal shall not operate as a stay, the writ should issue, if at all, only in exceptional eases. The grounds on which the writ is prayed for here would exist in every ease where a building is ordered to be closed, and, hence, to grant the writ would be to nullify the statute. Without passing on the merits of the appeal, it may be said that

The order to show cause is discharged and the writ prayed for is denied.

Burnett, J., and Hart, J., concurred.