Opinion
Department One
Hearing in Bank denied.
Application for a writ of mandate to the judge of the Superior Court of Alameda County.
COUNSEL:
Edward Lynch, for Petitioner.
B. McFadden, and Flournoy, Mhoon & Flournoy, for Respondent.
JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.
OPINION
ROSS, Judge
The petitioner's counsel states that if the undertaking given to stay execution in the action entitled Johnson v. Powers was not binding upon the sureties thereon, it would be idle to compel the respondent by mandamus to act upon the petitioner's motion. In this respect we agree with petitioner, and therefore inquire whether the undertaking is binding upon the sureties. Johnson v. Powers was an action in which by cross complaint, the defendant therein sought the foreclosure of a chattel mortgage. The court by its decree ascertained the amount due from the plaintiff to the defendant, and ordered a sale of the mortgaged property to pay the amount, with the usual provision in regard to the payment of costs, commissions, etc., and directing that in the event the proceeds of the sale be insufficient to pay the mortgage debt, that a judgment be docketed against the plaintiff in defendant's favor for such deficiency. From that judgment the plaintiff appealed, and for the purpose of staying execution of the judgment, gave in addition to the statutory undertaking of $ 300, an undertaking in double the amount of the sum ascertained by the decree to be due from the plaintiff to the defendant. On appeal the judgment was affirmed, and upon the going down of the remittitur the defendant's costs of appeal were paid to him and an order of sale issued under which the property was sold, and having realized but a trifle of the amount of the mortgaged debt, the defendant, who is the petitioner here, sought by motion in the court below [7 P. 136] to have judgment entered against the sureties on the undertaking for the amount of the deficiency. On behalf of the sureties who are the real parties in interest here, it is claimed that the undertaking, except in so far as the $ 300 is concerned and about which no question arises, was without consideration and void. The pretended consideration therefor was a stay of execution of the decree appealed from. And if the law itself operated a stay upon the giving of the $ 300 bond it would seem that the point is well taken. That the statute did so operate was held by this court in the case of Snow v. Holmes , 64 Cal. 232. As the statute itself wrought the stay, there was no consideration for the sureties' promise. The benefit which the plaintiff in the case of Johnson v. Powers secured from the appeal came from the statute and not from the promise of the sureties. Hence, what is said in Hathaway v. Davis , 33 Cal. 169, is not applicable.
Writ denied.