I dissent from the order denying a rehearing and from the judgment which now becomes final. The distinction which the court endeavors to make between this case and Green v. Hebbard, 95 Cal. 40, rests upon the assumption that if this appeal had been taken direct from the order requiring the receiver to pay over the funds in controversy, the appellant, to stay proceedings upon that order, would have been obliged to give an undertaking in double the amount of the money to be paid. This is apparent from the following passage in the opinion: "Upon an appeal direct from an order directing the payment of
money there can be no stay of proceedings, unless the appellant give an undertaking in double the amount of money named in the order. Upon this appeal from the order refusing to vacate the former order, there is no provision requiring such an undertaking, and the appellant asks for this supersedeas to stay the payment of this money upon the three-hundred-dollar undertaking alone, which is practically no security for the damages involved."
The assumption contained in this paragraph is absolutely opposed to what this court has several times decided.
In Estate of Schedel, 69 Cal. 241, the appeal was by a legatee from a decree of distribution, and the question was whether the ordinary appeal-bond in the sum of three hundred dollars would stay proceedings upon the decree. It was held that it did, and the ground of the decision is expressed in these words: "Sections 942 to 945, inclusive, apply to appellants who are required toperform the directions of the judgment or order appealed from.
This is manifest from their language. But the appellant in the present case is not required to do anything. It feels aggrieved by the decree, however, and has the right of appeal. The case is one not provided for in sections 942, 943, 944, and 945; and consequently, by the terms of section 949, the perfecting of the appeal by giving the undertaking mentioned in section 941 stays proceedings in the court below upon the judgment appealed from."
This opinion was followed in Pennie v. Superior Court, 89 Cal. 31, where the statute received the same construction, and where the principle of the decision was further illustrated.
Under these decisions it is clear that if this appellant had been made a party to the proceeding against the receiver, so that it could have appealed directly from the order, proceedings thereon would have been stayed by the ordinary three-hundred-dollar bond.
This being so there is no reason why, in view of the principle of Green v. Hebbard, 95 Cal. 40, it should be required to give any different undertaking on this appeal.
The principle of the decision in Green v. Hebbard, 95 Cal. 40, is too plain to be misunderstood. A party cannot be deprived of his appeal from an order affecting his rights by failing to make him a party to the motion, and taking the
order behind his back. Not being a party to the proceeding, he cannot take a direct appeal, but he can make himself a party by moving to set aside the order, and upon the denial of this motion may appeal therefrom with the same effect as he could have appealed from the original order. And as the effect of his appeal, if successful, will be a reversal of the original order, he has the same right to stay the proceedings as he would have had if his appeal had been in form what it is in substance and effect, — an appeal from the original order.
This doctrine heretofore sanctioned by our published decisions, and by our practice in motions for supersedeas since decided from the bench, seems to me perfectly reasonable and just, and I fail to discover any reason in the present opinion of the court for holding that the same appeal taken in one form is to be burdened with a condition to which it is not subject when taken in a different form.