Baldwin v. Superior Court

58 P. 185, 125 Cal. 584, 1899 Cal. LEXIS 906

Opinion

The COURT.

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 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.