Miller v. Gross
| Decision Date | 29 May 1975 |
| Citation | 48 Cal.App.3d 608,121 Cal.Rptr. 875 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the agreed case between John O. MILLER, Plaintiff and Appellant, v. Nelson Lewis GROSS, Defendant; NORTHWESTERN NATIONAL INSURANCE COMPANY, Real Party in Interest and Respondent. Civ. 44281. |
Jones & Wilson and Robert E. Jones, Los Angeles, for respondent Northwestern National Ins. Co.
Miller & Miller by Robert L. Miller, Los Angeles, for plaintiff and appellant.
Nelson Lewis Gross, defendant, in pro per.
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Plaintiff John O. Miller appeals the denial of his motion (made pursuant to Code Civ.Proc. § 1058a) seeking to impose liability upon a corporate surety, Northwestern National Insurance Company of Milwaukee, Wisconsin (real party in interest herein) on its appeal bond. 1
Plaintiff Miller filed a complaint on facts agreed to by defendant Gross, 2 and judgment for $103,000 in his favor was entered on April 27, 1971, by the stipulation of the parties against defendant Nelson L. Gross. Defendant Gross was also to pay $10,300, representing interest accrued to September 18, 1971. The judgment provided that, as security for payment, liens were thereby imposed on certain shares of stock in two corporations owned by defendant Gross, as well as on other assets.
On September 16, 1971, defendant Gross moved to vacate the judgment on the ground of extrinsic fraud or mistake. In essence, the factual basis alleged in support of the motion was that defendant had, due to various circumstances, been mentally incompetent at the time he agreed to the entry of judgment. Extensive discovery, including a psychiatric examination of defendant ordered by the trial court, ensued. While the hearing on the motion's substance was still pending, plaintiff obtained partial satisfaction of the judgment. On November 22, 1971, plaintiff secured a writ of execution for the balance owed.
Defendant's motion to vacate was denied on January 6, 1972, and his motion for reconsideration also was denied on February 25, 1972. Defendant then appealed to this court from the orders of denial.
While that appeal was pending, defendant made an ex parte motion in the trial court for an order fixing the amount of the bond which would be required to stay further execution of the judgment pending appeal; 3 the court assertedly was not informed that the appeal had been taken from denial of the motion to vacate judgment rather than from the judgment for money itself (for which appeal time had expired); the order as drafted and signed assumed that the appeal was from the money judgment. The trial court set the bond at $169,950, one and one-half times the amount of the original judgment.
On July 18, 1972, defendant filed with the court Northwestern's bond, insuring payment of the judgment should defendant fail to prevail on appeal. The bond recited that it was an undertaking pursuant to Code of Civil Procedure section 917.1, and that the premium paid was $1,700. On the same date, defendant moved to release the remaining stock which secured the judgment (and was subject to the writ of execution obtained by plaintiff in November 1971), on the ground that plaintiff could now rely on the appeal bond for satisfaction of judgment should defendant lose the appeal. Plaintiff opposed the motion, and on August 2, 1972, the trial court denied defendant's motion without prejudice, suggesting that defendant make application to the appellate court for relief.
On August 16, 1972, Northwestern filed a motion to exonerate the appeal bond. From the affidavits filed in support thereof by various of the surety's agents, it appears that defendant Gross had paid the bond premium with a bad check for $2500; he had also promised Northwestern, as consideration for the bond, the delivery of certain corporate stock as security, a delivery he was unable to make when the trial court refused to release the securities which were securing plaintiff's judgment. This motion was subsequently withdrawn by Northwestern.
On September 7, 1972, defendant again attempted to gain access to the stock by moving to quash the writ of execution then in force in plaintiff's favor, on the ground that plaintiff could now rely on the appeal bond. Plaintiff opposed the motion, and on September 14, 1972, the trial court again denied defendant relief without prejudice. On October 3, 1972, plaintiff renewed the writ of execution for $59,621.25, but took no further steps to secure satisfaction of judgment.
On July 18, 1973, the remittitur was filed on defendant's appeal. In an unpublished opinion, Division Two of this court found the appeal to be without merit, and affirmed the trial court's orders (2d Civ. No. 40372).
Plaintiff's motion to enforce liability of the surety followed. In the trial court, the surety offered no defense based upon the circumstances under which the bond had been obtained and filed by defendant Gross, but contended, as it does here, that the bond had been void from inception. As indicated, the trial court denied plaintiff's motion on December 14, 1973, and he has appealed the order of denial, which is an appealable order. (Merritt v. J. A. Stafford Co., 68 Cal.2d 619, 622, 68 Cal.Rptr. 447, 440 P.2d 927.)
Northwestern argues that the bond was never effective to secure a stay of execution, because the appeal which it purportedly insured was not from a judgment within the confines of Code of Civil Procedure section 917.1, I.e., an appeal from a judgment for money or an order directing the payment of money, but rather from a denial of post-judgment relief. Plaintiff contends that the order denying defendant relief was, in practical effect, the same as one ordering defendant to pay the judgment, and that Code of Civil Procedure section 917.1 should be so construed.
The law governing the right of an appellant to a stay of execution pending appeal is totally statutory, created by legislative enactment. As such, it is subject to the general rules of statutory construction, including the basic proposition that such enactments should be construed in accordance with legislative intent. (S & Q Construction Co. v. Haynie, 211 Cal.App.2d 649, 27 Cal.Rptr. 589; 45 Cal.Jur.2d, Statutes, § 97, p. 611, et seq.) In 1968, the Legislature enacted sections 917.1 through 923 of the Code of Civil Procedure dealing with the varying circumstances under which the trial court could grant a stay of execution of a judgment pending appeal. Included in the statutory scheme were sections concerning money judgments (§ 917.1), judgments ordering the delivery of personal property (§ 917.2), and judgments directing the execution of instruments (§ 917.3), among others.
Code of Civil Procedure section 917.1, which concerns us here, was formerly Code of Civil Procedure section 942, and provides, in pertinent part, that:
This and related sections confer upon the trial court jurisdiction to order a stay, even after the taking of an appeal (Gold v. Superior Court, 3 Cal.3d 275, 90 Cal.Rptr. 161, 475 P.2d 193) and, if the bond is filed in sufficient amount, the trial court has no discretion to refuse the stay. (Stevens v. Superior Court, 28 Cal.App.3d 1, 104 Cal.Rptr. 369.)
In the case at bench, it appears that the...
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