Morey v. . Tracey

Andrews, J. The judgment against G-eorge W. Tiift and Francis W. Tracy, rendered upon their joint undertaking as sureties upon the successive appeals in the suit of Davis v. Bead et al., was in form against both defendants, upon service of process upon Tiift alone. The defendant Tracy was not served with the summons, nor did he appear in the action. Tiift appealed from the judgment and gave the requisite undertaking to stay proceedings. The plaintiff, pending the appeal by Tiift brought this action against Tracy, under section 1937 of the Code, and the sole question is whether the provision of section 1310, that, when an appeal is perfected and security given, “ the appeal stays all proceedings to enforce the judgment appealed .from,” is a defense. The answer is plain. The action is not brought to enforce the original judgment. The original judgment bound the defendant served and authorized execution to go against his separate property or the joint personal property of both defendants. These are the only rights flowing from the judgment, and their enforcement was stayed by the appeal. The present action is not an action to enforce the plaintiff’s rights under the original judgment, or to obtain the fruits of it. Its sole object is to establish Tracy’s liability on the original contract, which was not determined by the original judgment, and of which it was no evidence. If there had been no stay, the plaintiff would have been compelled to proceed against Tracy by action, to enforce his personal liability. It is not material whether this action is regarded as an action in form on the judgment, or upon the original contract. It is not an action to enforce the judgment, and this is all that the stay prevents. The plaintiff could not rest on the judgment, to maintain his action. The liability of Tracy could only be established by evidence aliunde, and Tracy could interpose any defense which he might have made in the *584 original action. (Code, § 1039.) The primary object of section 1310, was to protect the party appealing from having the judgment enforced against him while the right was in controversy, on condition of giving security for the final judgment. The defendant is not in a position to interpose the stay secured by Tifft, as a defense to a proceeding instituted to determine rights not adjudicated by the former judgment. The judgment should be affirmed. All concur. Judgment affirmed.