Fulton v. Hanna

Opinion — Sprague

Sprague, J., delivered tbe opinion-of tbe Court, Croce-ett, J., and Temple, J., concurring:

At the time petitioner demanded execution upon bis judgment against Cox and "Willcutt of respondent, as tbe Clerk of the Court in which judgment was rendered, there was an appeal pending in tbis Court from an order denying defendant’s motionfora new trial of tbe cause, in which petitioner’s judgment was obtained, on which appeal appellants bad given a full bond to stay execution, as required by Section 349 of tbe Practice Act. I have no doubt tbis appeal operated a stay of an execution upon tbe judgment pending such appeal, and tbe circumstance that a prior appeal from tbe judgment bad been dismissed by tbis Court for want of prosecution before an appeal from tbe order denying defendant’s motion for a new trial tberein bad been perfected, cannot change tbe effect of an appeal from tbe order.

Although an appeal from an order denying a motion for a new trial is in a different and distinct line of proceeding from a direct appeal from a judgment, still a reversal on appeal from tbe order denying a motion for a new trial and remanding tbe cause for re-trial, as effectually vacates the judgment as a reversal of tbe judgment upon a direct appeal therefrom; and when a full bond is given on appeal from such order, as provided in Section 349 of tbe Practice Act, I can see no reason why execution is not as effectually stayed upon tbe judgment pending such appeal as it would *281have been pending a direct appeal from the judgment, with a like bond or undertaking. The fact that a direct appeal from the judgment had been dismissed, certainly does not place the appellant in any different or more unfavorable position in respect to his appeal from the order than he would have occupied had no direct appeal from the judgment ever been taken within the time prescribed by the statute.

If these views be correct, the respondent very properly declined to issue the execution demanded by the petitioner, and no mandate should issue to compel a compliance with such demand.

Furthermore, the judgment, upon which petitioner demanded his execution, was a simple money judgment, and, if entitled to his execution, and respondent refused, upon proper demand, to issue the same, he had “a plain, speedy and adequate remedy in the ordinary course of law,” by motion in the proper Court, or by action against the Clerk; and this alone, as a general rule, is a sufficient answer to his application for a writ of mandamus. (Goodwin v. Glazer, 10 Cal. 333.)

The writ must, therefore, be denied.

Bo ordered.

Concurrence — Erodes

By Erodes, C. J.:

I concur in the judgment.

Mr. Justice WALLACE, being disqualified, did not sit in this case.