Ex parte Clancy

Sharpstein, J.

— The petitioner alleges that he is imprisoned by the sheriff of San Francisco, and that such imprisonment is illegal, for the following reasons: —

On the second day of July, 1891, petitioner, upon the petition of certain of his creditors, was adjudged by the superior court of the city and county of San Francisco an insolvent debtor, and ordered to file, and did file, his schedules in said matter of insolvency. On the sixteenth day of July, 1891, petitioner, in compliance with an order of said court, appeared therein, and was examined concerning his property and estate, and thereupon said court ordered petitioner to turn over or pay to the receiver in said insolvency proceeding four thousand dollars in assets; to wit, goods, wares, and merchandise, or its avails.

Petitioner did not comply with that order, and was by the court adjudged guilty of a contempt of court for not complying therewith, and committed to the custody of the sheriff, there to remain until he, petitioner, should comply with said order. Petitioner, on the twenty-fifth day of July, 1891, duly served and filed a notice of appeal to this court from said order adjudging him guilty of contempt, and within five days thereafter filed an undertaking on appeal, with sufficient sureties, to the effect that appellant would pay all damages and costs that might be awarded against him on the appeal, or on the dismissal thereof, not exceeding three hundred dollars. No other undertaking has been filed, and the sheriff refuses to release petitioner from imprisonment.

The contention of counsel for petitioner is, that the appeal from the order adjudging him guilty of a contempt stayed all further proceedings upon said order pending such appeal.

Section 64 of the Insolvent Act of 1880 provides that “ all sections of the Code of Civil Procedure of the state of California relating to contempts are hereby made applicable to all proceedings under this act. An appeal shall be allowed to the supreme court from any order adjudging any person guilty of a contempt of court.” The Code of Civil Procedure makes no provision for an appeal from an order or judgment adjudging any person guilty of a contempt, but does provide that “the judgment and orders of a court or judge made in cases of contempt are final and conclusive.” (Code Civ. Proc., sec. 1222.)

Conceding, however, that an appeal does lie from an order or judgment in a case of contempt arising under the Insolvent Act, we must determine whether the undertaking on appeal in this case was sufficient to stay the execution of the judgment or order appealed from. If it be a case not provided for in sections 942, 943, 944, or 945 of the Code of Civil Procedure, the undertaking filed is sufficient to stay execution of the judgment or order appealed from. But we think it is a case provided for by section 943. As we construe it, the judgment or order appealed from does direct the delivery of personal property by the petitioner to the receiver, and that the execution of such “judgment or order cannot be stayed unless the things required to be delivered be placed in the custody of the officer or receiver appointed by the court, or an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court or a judge thereof may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.” We think the undertaking filed in this case was insufficient to stay the execution of the judgment or order appealed from, and therefore the petitioner must be remanded to the custody of the sheriff of the city and county of San Francisco.

Petitioner remanded.

McFarland, J., concurred.