Rosenbaum v. Tobler

Headnote

Security on Appeal.

Appeal from judgment of foreclosure and sale being by parties who are neither in possession of the premises, nor against whom judgment of deficiency is awarded, application to fix security and for stay should not be made under Code Civ. Proc. § 1331, providing that if appeal is taken from a judgment entitling respondent to immediate possession, or directing sale or delivery of possession of real property, it does not stay execution, till giving of undertaking that appellant will not, “while in possession,” commit waste, and, if judgment is affirmed, will pay for use and occupation, and further providing that, if the judgment directs a foreclosure and sale of mortgaged real estate, an undertaking is sufficient to stay the execution which is to the effect that, if the judgment is affirmed, the appellant will pay any deficiency which may occur on the sale.

Action by Daniel Rosenbaum against Charlotte Tobler individually and as administratrix of Henry M. Silverman and others. There was judgment for plaintiff. From an order. denying application to fix security and for stay, said Tobler and other defendants appeal. Affirmed.

The following is the opinion of the court below (STOVER, J.);

The application is to fix security, under section 1331 of the Code, and, upon the fixing of the amount thereof, that a stay be granted. The action is one of foreclosure, and judgment of foreclosure and sale has been perfected in favor of the plaintiff. The appeal is taken by a party who is neither in possession of the premises, nor against whom a judgment of deficiency is awarded by the judgment. I think section 1331 applies only to the class of persons therein named, viz. those who are in possession of the property, or against whom a judgment of deficiency is awarded by the judgment; and in those cases the court should fix the amount, not exceeding which they should be liable upon the undertaking. The defendants here, I think, are in no position to avail themselves of the provisions of that section; but, if a stay is desired, it should rather be applied for under sections 1351 and 1352. It would be idle to require the defendants who appeal herein to give an undertaking that “while in possession” they will not suffer or permit any

waste of the premises, and there can be no adequate protection for the plaintiff in the action, except under the general provisions of sections 1351 and 1352. The order therefore may provide for a stay, upon the defendants filing an undertaking, with two sureties, in the sum of $5,000, to the effect that, if the judgment is affirmed or the appeal is dismissed, the appellants will pay any deficiency which may occur upon the sale, with interest and costs, and all expenses chargeable against the proceeds of the sale, and all costs and damages which may be awarded against them on appeal; such undertaking to be approved by the court, and duly filed, and a copy thereof, with notice of filing, served on the respondent’s attorney on or before April 13th. Order signed.