Coombs v. Barker

MB. JUSTICE MILBUBN delivered the opinion of the court. This is an appeal from an order made after final judgment. Under an execution the sheriff levied upon certain shares of stock and certain money belonging to some of the defendants. The court granted a motion for a new trial in part. Plaintiffs and defendants appealed from this order. Plaintiffs also appealed from an order denying their motion for a new trial as to two defendants, Lavina A. Collins and E. J. Barker, and from a judgment in their favor. Thereafter the court, on motion based upon the files and records, made its order annulling the execution, and it is from this order that this appeal is before us. The court seems to have entertained the idea, suggested by counsel here and in the court below, that there was not any [79] judgment against the defendants, because the court had granted a motion for a new trial. Several early California authorities are cited, which bluntly, without argument, say that the granting of a motion for a new trial vacates the judgment. Of course, a final order upsetting the verdict vacates the judgment. But such an order is not final until after the time for appeal therefrom has passed, or until the appeal is determined if there be one. The appellants were not affirmatively commanded to do anything by the order granting the new trial. Therefore their appeal falls within those referred to in section 1733 of the Code of Civil Procedure, which declares that the filing of the appeal bond of $300 stays all proceedings in the court below upon the judgment or order appealed from. The law is full of difficulty when we think of the numerous appeals allowed in the same cause, but the proceedings are stayed or not stayed under the judgment when an appeal such as the one before us is perfected. If the perfecting of the appeal stays only proceedings relating to “the order appealed from” (section 1733), then the sheriff may go ahead with the execution, and the court may not interfere. If, on the other hand, the proceedings under the judgment are stayed, then the sheriff stops, stays his hand, and waits, and the court may not annul the execution and order him to proceed to gather up the property and give it over to the judgment debtor. The court was in error in making the order and setting aside the execution, and therefore said order is reversed and set aside. Reversed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.