Karry v. Superior Court , 162 Cal. 281 ( 1912 )

This is a proceeding in certiorari and grows out of the following situation: On April 22, 1909, in the superior court of the county of San Joaquin, an action was brought by E. Gjurich, one of the petitioners herein, against one Fanny Fieg to recover the sum of five thousand dollars for alleged services. Thereupon a writ of attachment was issued and levied upon certain real and personal property of the defendant in the action. The undertaking for said attachment was executed by A.T. Karry and Herman Wendel, petitioners herein, and provided that they "do jointly and severally undertake in the sum of four hundred dollars, and promise to the effect, that if the defendant recover judgment in said action, the said plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of said attachment, not exceeding the sum of four hundred dollars." The action was tried and, on June 10, 1910, judgment rendered in favor of the defendant Fieg for costs in the sum of $145.71; on June 14th, following, notice of appeal from said judgment was given and on the same day said Gjurich filed his undertaking on appeal with the clerk of the court. For the purpose of continuing in force the said attachment during the pendency of said appeal, the said Gjurich, on June 15, 1910, filed an undertaking in due form, according to the provisions of section 946 of the Code of Civil Procedure, in the sum of ten thousand dollars, being double the amount of the debt claimed by said Gjurich, to secure the payment to said Fieg of all costs and damages which she might sustain by reason of said attachment. On the first day of July, 1910, while the aforesaid action was pending on appeal in the supreme court, the said Fieg brought an action in the justice court of O'Neal Township, in said county, against petitioners herein, to recover said costs and damages claimed by reason of said attachment. The defendants appeared and pleaded in abatement the pendency of said appeal in the supreme court and the giving of said undertaking to continue the attachment in force. The justice court awarded judgment to the plaintiff therein as prayed for. The defendants thereupon appealed to the superior court of said county and, after a trial before Hon. J.A. Plummer, judgment was rendered in favor of said plaintiff, Fieg, and against the said defendants, the petitioners herein, for $145.71, the amount of the judgment recovered in the first mentioned action. As a return to the order to show cause issued by this court, a demurrer was filed and also a certified copy of the proceedings in the court below, sufficiently ample for the purposes of this decision. For convenience of reference, we shall hereafter designate the original action brought by Gjurich against Fieg as number one and the action brought by Fieg against petitioners here to recover her costs and damages as number two.

The first question in order of sequence is, seemingly, what was the effect upon the judgment of the appeal in action number one? As to this, in view of the provisions of the statute and the decisions of the appellate courts, there can be, apparently, no kind of doubt. Section 946 of the Code of Civil Procedure provides that "Whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein . . . but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from. . . . An appeal does not continue in force an attachment unless an undertaking be executed and filed on the part of the appellant by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless, within five days after the entry of the order appealed from such appeal be perfected." Section 949 of the same code is, as far as it goes, to the same effect and is as follows: "In cases not provided for in sections nine hundred and forty-two, nine hundred and forty-three, nine hundred and forty-four, and nine hundred and forty-five, the perfection of an appeal by giving the undertaking or making the deposit mentioned in section nine hundred and forty-one, stays all proceedings in the court below upon any judgment or order appealed from, except where it directs the sale of perishable property." It is not disputed that the appeal here was perfected as required by the statute.

If we are to give effect to the simple, unequivocal terms of the law, unless we have a case within some of the exceptions mentioned, it necessarily follows that no step could be taken legally to enforce or carry into execution or to impair or modify in any respect said judgment during the pendency of said appeal. It is apparent, indeed, from an examination of the foregoing provisions relating to the exceptions, that they have no application to the case at bar. In fact, there can be and is no pretense that any of them is germane to the question before us except possibly said section 942 of the Code of Civil Procedure, which provides that "If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order," etc. But a judgment for costs is not a judgment directing the payment of money in the sense of the statute. The judgment under review was essentially that plaintiff take nothing and, as an incident thereto, that defendant be allowed her costs.

If additional assurance of the foregoing be sought, we may find it in the decisions at hand.

In Snow v. Holmes, 64 Cal. 232, [30 P. 806], it was held that, on appeal from a judgment of foreclosure of a mortgage upon personal property, the undertaking in the sum of three hundred dollars is sufficient to stay the execution of a judgment pending the appeal.

In re Schedel, 69 Cal. 241, [10 P. 334], involved the effect of an appeal from a decree of distribution and the general rule was held to apply and it was declared that "sections 942 to 945, inclusive, apply to appellants who are required to perform the directions of the judgment or order appealed from. This is manifest from their language."

In Pennie v. Superior Court, 89 Cal. 31, [26 P. 617], it was held that, on appeal from an order requiring the administrator to pay a family allowance to a certain claimant, an undertaking in the sum of three hundred dollars stayed all proceedings and that an order made after said appeal directing the administrator to make the payment is beyond the jurisdiction of the superior court and should be annulled upon certiorari.

So, in Powers v. Chabot, 93 Cal. 266, [28 P. 1070], it was held that, since no bond is required to stay execution in addition to the usual bond for costs on appeal from a judgment foreclosing a chattel mortgage, a bond given upon such appeal, to secure a judgment for deficiency, is not a statutory bond and is without consideration and void.

In McCallion v. Hibernia, etc., Society, 98 Cal. 445, [33 P. 329], it is said: "As to that portion of the judgment awarding costs against appellants, a stay-bond was not required to restrain the issuance of an execution to recover such costs. The appeal-bond effected that object. The real judgment in the case is that plaintiffs are the owners of the money, and no stay-bond being required by the statute as to such a judgment, no stay-bond is demanded as to the costs. The costs taxed against the defendant were incidental to the judgment, and as to a stay of execution, inseparably connected therewith. A judgment for costs is not the judgment directing the payment of money contemplated by section 942 If such were the fact, a stay-bond would be required in almost every conceivable case, when to the contrary, it is only required in the four cases covered by sections 942 to 945 of the code."

It must be apparent that even the exceptions provided for in the code present a somewhat anomalous situation. It seems rather peculiar that an execution based upon and presupposing a judgment should be permitted before there really is a judgment in the proper sense of the term. "A judgment is the final determination of the rights of the parties in an action or proceeding" (Code Civ. Proc., sec. 577) and "until litigation on the merits is ended, there is no finality to the judgment, in the sense of a final determination of the rights of the parties, although it may have become final for the purpose of an appeal from it." Gillmore v. American C.I. Co., 65 Cal. 63, [2 P. 882]. In the exceptional cases referred to, however, the "judgment" signifies the determination by the trial court of the rights of the parties, but those cases should not, obviously, be enlarged beyond the terms of the statute.

The next inquiry is, What was the basis for the complaint or the cause of action in number two upon which plaintiff relied for recovery? It is contended by respondent that the action was brought upon the undertaking in attachment and that the suit was not brought on the judgment in action number one. In a sense it must be true that said undertaking is the basis for the action. The undertaking constituted a contract for the payment of money under certain conditions. But it is as clear as anything can be that the obligation imposed upon the sureties on that undertaking was a conditional one, contingent upon the happening or existence of certain facts. The sureties bound themselves to pay only "if the defendant recover judgment in said action." Said recovery of judgment in number one was and is, therefore, an essential element in the cause of action in number two. The recovery of judgment was the circumstance agreed upon to fix the liability of the sureties and make it absolute instead of conditional. "A suit on a bond cannot be commenced before there is any breach of the bond." Cook v. Ceas, 143 Cal. 226, [77 P. 65]. While it may not be said, probably, that the recovery of judgment in action number one is the sole cause of action in number two, it must be conceded that no cause of action could have been stated without an averment that said judgment had been recovered, and the said action could not be maintained without proving that judgment was rendered for defendant in action number one. But there is no principle better established than that sureties may stand upon the strict letter of their undertaking and its terms must be strictly construed in their favor. Indeed, since it is a statutory bond, it is reasonable to hold that the terms used therein which are defined by the statute were used in such statutory sense. Therefore the action against the sureties was premature for the reason that no judgment has as yet been rendered in action number one, the action being still pending on appeal and the "judgment" referred to meaning the final determination of the rights of the parties.

But, again, the sureties promised to pay "all costs that may be awarded to the defendant and all damages which he may sustain by reason of said attachment." What does the term "costs" comprehend? Considered in connection with the preceding clause in reference to the recovery of judgment, it can simply mean that the sureties will pay all costs that may be awarded to the defendant therein by the judgment in action number one — in other words, whatever judgment for costs that may be rendered. By said judgment, therefore, if rendered, is the fact of their liability fixed and the extent of their liability determined. Thus it is clearly disclosed that the judgment in action number one is the basis for action number two. But it is settled beyond controversy that "an action will not lie upon a judgment until it has become final." Feeney v. Hinckley, 134 Cal. 468, [66 P. 580]: "Until that time has arrived, no cause of action upon the judgment has accrued." Hills v. Sherwood, 33 Cal. 474. In Cook v.Ceas, 143 Cal. 226, [77 P. 65], it is said: "It has been held here in a great number and great variety of cases that so long as an action or proceeding is pending in this sense the judgment or order from which an appeal has been or may be taken cannot be made the basis of any new action."

There is only one other possible application of the term "costs" as used in said undertaking and that is to refer it to the expense that may be incurred by reason of the attachment. But, under said construction, it is apparent that no ground for the action exists, since the attachment is still in force by virtue of the said ten-thousand-dollar-bond. There could be no breach of the undertaking to pay the costs and damages caused by the levy of the writ of attachment while the property is still lawfully subject to said writ. We presume this will not be disputed.

The result of the foregoing discussion, as we conceive it, is that the trial court awarded judgment upon a cause of action that had not arisen and that may never arise by reason of the disposition hereafter of said appeal to the supreme court. It may be stated also that if respondents should be upheld petitioners will be required to pay the money, although it may be subsequently determined that defendant in action number one is not entitled to judgment for costs. Whereas, if the action of the court below is annulled, plaintiff in number two is abundantly protected by the said ten-thousand-dollar-bond.

No doubt this was given consideration by the learned trial judge but it appears from his opinion that he felt constrained by the decision in Bailey v. Aetna Indemnity Co., 5 Cal.App. 740, [91 P. 416]. In our opinion, however, that case is easily distinguishable from this; there an action was brought and a writ of attachment was levied upon property belonging to the defendant. A bond was thereupon given by defendant for the release of said property and it was accordingly relieved from the lien of said levy. Judgment was obtained by plaintiff in the action and there was no stay of execution. A writ of execution was thereupon issued and returned unsatisfied. The very conditions existed, therefore, which were necessary to fix the liability of the sureties on the bond given to release the attachment, and a judgment against them was properly upheld. This is made clear by reference to sections 552, 554, and 555 of the Code of Civil Procedure. The last two provide for the release of the attachment upon the giving of an undertaking and they prescribe the terms of said undertaking; and section 552 provides that "If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section five hundred andforty or section five hundred and fifty-five, or he may proceed, as in other cases, upon the return of an execution." Here, as we have seen, no execution on the original judgment was issued or could be legally, and the liability of the sureties is contingent and not absolute.

The remaining question is as to the remedy. Herein it is claimed that at most a mere error was committed not in excess of jurisdiction and that it cannot be reached by certiorari.

We deem it unnecessary to discuss the function and scope of this writ, as the subject has received ample consideration from various courts. Reference may profitably be had to the following decisions, among others, of our supreme court: Monreal v. County Judge, 46 Cal. 79; Reynolds v. County Court ofSan Joaquin, 47 Cal. 604; In re Schedel, 69 Cal. 241, [10 P. 334]; Pennie v. Superior Court, 89 Cal. 31, [26 P. 617];Buckley v. Superior Court, 96 Cal. 119, [31 P. 8]; Stewart v.Superior Court, 100 Cal. 543, [35 P. 156]; Holbrook v. SuperiorCourt, 106 Cal. 589, [39 P. 936]; Schwartz v. Superior Court,111 Cal. 106, [43 P. 580]; McClatchy v. Superior Court,119 Cal. 413, [39 L.R.A. 691, 51 P. 696]; Daly v. Ruddell, 129 Cal. 300, [61 P. 1080]; Stumpf v. Board of Supervisors, 131 Cal. 364, [82 Am. St. Rep. 350, 63 P. 663].

It may be said as to these cases that they are substantially consistent in their exposition of the nature of the writ and of the legal principles involved in its operation, but in the application of those principles to the diverse facts of the various cases we find quite a contrariety of opinion. This is not surprising, since it is manifestly a question of great difficulty, at times, to determine whether an error is jurisdictional or not and what facts are essential to clothe the court with legal authority to proceed with the trial of an action.

It is confidently asserted, though, that if the situation here is understood, authority for the issuance of the writ will not be hard to find and such authority will be recognized as consonant with well-established principles of law.

To reiterate somewhat, the case is essentially this: A judgment was rendered in a certain action. An appeal was taken which, ipsofacto, stayed all proceedings upon that judgment. Nevertheless, another action was brought, based upon said judgment and which constituted in effect an attempt to make said judgment operative and to carry it into execution. The prosecution of this proceeding was permitted by the trial court. It would be no different in principle if the court had allowed an execution to be issued and levied to satisfy said judgment. Since all proceedings upon said judgment looking towards its enforcement were and are stayed by the plain provisions of the statute, no court has any legal authority — in other words, any jurisdiction — to entertain a proceeding to appropriate the fruits of the litigation while that litigation is still pending and undetermined.

In re Schedel, 69 Cal. 241, [10 P. 334], decided that a writ of supersedeas should issue to stay proceedings on a decree of distribution of the estate of a deceased testator pending an appeal therefrom by a legatee. The writ of supersedeas is "an auxiliary process designed to supersede the enforcement of the judgment of the court below brought up by a writ of error for review." (Williams v. Bruffy, 102 U.S. 249, [26 L. Ed. 135].) It is issued because of the want of jurisdiction to enforce the judgment. It stays a threatened step towards execution. The effect is the same as the annulment by certiorari of steps that have already been taken for the enforcement of a judgment whose operation has been suspended.

In Pennie v. Superior Court, as we have already seen, the order directing the payment of the family allowancce was annulled oncertiorari. Stewart v. Superior Court involved the application for a writ of review to annul an order of the court below adjudging petitioner guilty of contempt for the disobedience of its judgment. It was held that the appeal in the original action operated as a supersedeas against the judgment and that since said petitioners did nothing except to restore the property to the condition that existed at the time said judgment was rendered, there was no contempt on their part and the order adjudging them guilty was annulled on certiorari.

So, in Daly v. Ruddell, 129 Cal. 300, [61 P. 1080], it was held that a supersedeas would issue to restrain the lower court from taking any action to enforce a judgment in reference to the laying of a pipe-line where there was an appeal from said judgment pending in the supreme court.

We think it reasonably certain, upon principle and under the foregoing and other authorities, that this is a proper case forcertiorari and the demurrer is overruled and the judgment of the lower court is set aside and annulled.

Hart, J., and Chipman, P.J., concurred.