Ewing v. Jacobs

Decided July 1, 1874

California Supreme Court · decided 1874-07-01

<p>Appear from the District Court, Seventh Judicial District, County of Solano.</p> <p>On the 27th of March, 1873, A. T. Allinder recovered a judgment in the District Court, Solano County, against Ewing, the plaintiff here, for three hundred and sixty-five dollars and seventy cents and costs. On the 5th day of July, 1873, an execution, issued on said judgment, was placed in the defendant’s hands, as Sheriff of Solano county, and by virtue thereof, two days afterwards, he levied on the personal property of the defendant in the judgment. On the 10th day of July, 1873, the defendant in the execution perfected an appeal to the Supreme Court, and filed an undertaking, to stay proceedings. The certificate of the Clerk that such appeal had been taken, and such stay bond filed, was then served on the Sheriff, but he still continued to hold possession of the property. The plaintiff then demanded possession of the property, but the Sheriff refused to surrender it. This action was commenced on the 13th day of September, 1873,. to recover possession of the property, and damages for the detention thereof. The Court below rendered judgment in favor of the defendant and the plaintiff appealed.</p>

Cited by 1 later decisions — most recently April 1927

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1874-07-01

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By the Court, Niles, J:

¶1Under the provisions of section nine hundred and forty-six of the Code of Civil Procedure, as it stood when this action was brought, the perfecting of the appeal in the case of Allinder v. Ewing, operated merely to stay all further proceedings upon the judgment, but did not release from levy the property already seized under execution. The lien acquired by the levy was not superseded by the giving of the undertaking on appeal, but was suspended until the decision of the Appellate Court; and in the interval it was the duty of the Sheriff to retain possession of the property. (Crocker on Sheriff, Sec. 35.)

¶2Judgment affirmed.

¶3Neither Mr. Justice Rhodes nor Mr. Justice McKinstry expressed an opinion.