Opinion
S.F. No. 5582.
May 26, 1910.
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 undertaking 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.