Opinion
Docket No. 9094.
October 10, 1933.
EXCEPTIONS to sufficiency of sureties on supersedeas bonds and motions for order setting aside order of the Superior Court of the City and County of San Francisco approving said bonds and justifying the sureties. Thomas F. Graham and James G. Conlan, Judges. Bonds ordered filed in appellate court and other matters continued.
The facts are stated in the opinion of the court.
Sawyer Cluff, James F. Brennan, John J. McMahon and Milton Silverberg for Appellant.
Morrison, Hohfeld, Foerster, Shuman Clark for Respondents.
THE COURT.
Upon petition it was ordered that a writ of supersedeas issue in the above matter and that appellant present to the presiding judge of the Superior Court in and for the City and County of San Francisco for approval as to their sufficiency a bond or bonds to stay execution. Bonds were presented to said presiding judge and were by him approved and filed in that court.
Plaintiffs contend that the bonds were improperly filed. They have also filed exceptions in this court to the sufficiency of the sureties, and have asked for an order setting aside the order of said judge of the superior court approving the bonds and justifying the sureties.
[1] While it is the function of the trial court to fix the amount of appeal bonds and pass upon the sufficiency of the sureties ( Jameson v. Chanslor etc. Oil Co., 173 Cal. 612 [ 160 P. 1066]; Messenkop v. Duffield, 211 Cal. 222 [ 294 P. 715]), nevertheless the appellate court has power to restrain the enforcement of judgments upon the filing of proper undertakings therein, where, by reason of the insufficiency of the undertaking filed in the court below, a statutory supersedeas has not been created. ( Messenkop v. Duffield, supra; Segarini v. Bargagliotti, 193 Cal. 538 [ 226 P. 2].) [2] As shown by the above and the following cases the practice of filing such bonds in the appellate court seems well settled ( Nonpareil Mfg. Co. v. McCartney, 143 Cal. 1 [ 76 P. 653]; Halsted v. First Sav. Bank, 173 Cal. 605, 611 [ 160 P. 1075]; Foster v. Fernandes, 200 Cal. 274 [ 252 P. 726]); and it is clear that where the matter of the sufficiency of such bond is referred to a judge of the superior court he acts as an officer of the court in which the appeal is pending.
It is accordingly ordered that said bonds be filed in the office of the clerk of this court, and that pending such action consideration of the other matters involved in said motions be continued.