Johnston v. Jones

California Court of Appeal

Johnston v. Jones

239 P. 862, 74 Cal. App. 272, 1925 Cal. App. LEXIS 184

CourtCalifornia Court of Appeal

DecidedAugust 27, 1925

DocketDocket No. 3012.

StatusPublished

Cited by2 cases

This text of 239 P. 862 (Johnston v. Jones) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnston v. Jones, 239 P. 862, 74 Cal. App. 272, 1925 Cal. App. LEXIS 184 (Cal. Ct. App. 1925).

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Opinion

THE COURT.

This is an application by the defendant for a writ of supersedeas staying the enforcement, pending appeal, of a writ of mandate issued by the trial court, commanding the defendant to release certain “attachments or garnishments . . . served or levied by him,” as sheriff, in an action by one ITille against the plaintiff herein.

*273 The petition alleges that the defendant has regularly-appealed to this court from the judgment entered against him in the mandamus proceeding; that, notwithstanding such appeal, the plaintiff has threatened to and will apply to the trial court “for an order adjudging appellant guilty of contempt of court in the event that he refuses to release the said attachment in accordance with the said writ of mandate; and appellant is informed and believes and therefore alleges that said court . . . will entertain the said motion . . . to have appellant adjudged guilty of contempt of court.”

It is clear that the perfecting of an appeal, without an undertaking, is sufficient to stay execution of a judgment directing the issuance of a writ of mandate. (Code Civ. Proc., sec. 949; People v. Jackson, 190 Cal. 257, 262 [212 Pac. 4]; People v. Laine, 177 Cal. 742, 745 [171 Pac. 941]; Wolf v. Gall, 174 Cal. 140, 142 [162 Pac. 115].) It is not to be presumed, in the absence of a stronger showing than here made, that the trial court will proceed in disregard of the plain provisions of the statute and the construction thereof by the supreme court.

The petition is denied without prejudice.

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THE COURT.

This is an application by the defendant for a writ of supersedeas staying the enforcement, pending appeal, of a writ of mandate issued by the trial court, commanding the defendant to release certain “attachments or garnishments . . . served or levied by him,” as sheriff, in an action by one ITille against the plaintiff herein.

*273 The petition alleges that the defendant has regularly-appealed to this court from the judgment entered against him in the mandamus proceeding; that, notwithstanding such appeal, the plaintiff has threatened to and will apply to the trial court “for an order adjudging appellant guilty of contempt of court in the event that he refuses to release the said attachment in accordance with the said writ of mandate; and appellant is informed and believes and therefore alleges that said court . . . will entertain the said motion . . . to have appellant adjudged guilty of contempt of court.”

It is clear that the perfecting of an appeal, without an undertaking, is sufficient to stay execution of a judgment directing the issuance of a writ of mandate. (Code Civ. Proc., sec. 949; People v. Jackson, 190 Cal. 257, 262 [212 Pac. 4]; People v. Laine, 177 Cal. 742, 745 [171 Pac. 941]; Wolf v. Gall, 174 Cal. 140, 142 [162 Pac. 115].) It is not to be presumed, in the absence of a stronger showing than here made, that the trial court will proceed in disregard of the plain provisions of the statute and the construction thereof by the supreme court.

The petition is denied without prejudice.

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Bluebook (online)

239 P. 862, 74 Cal. App. 272, 1925 Cal. App. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-jones-calctapp-1925.

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