Mathewson v. Naylor

RUTH MATHEWSON, Appellant, v. EDWARD HARRISON NAYLOR, etc., Respondent.

COUNSEL

John A. Jorgenson and Don R. Holt for Appellant.

Wallace & Crandall for Respondent.

OPINION

Crail P. J.

The plaintiff sought to recover a money judgment against defendant upon certain promissory notes. The trial court entered judgment in favor of the defendant (respondent) and against the plaintiff for costs. The plaintiff appealed and the case is now pending, having been submitted for decision upon briefs of counsel on October 18, 1936, and being now under submission. [1] A judgment for costs is not "a judgment for the payment of money" requiring an undertaking on appeal to stay execution under the provisions of section 942 of the Code of Civil Procedure (California etc. Corp. v. Cornelius Cole, Ltd., 132 Cal. App. 105 [22 PaCal.2d 520]), and the appeal stayed the execution on the judgment for costs.

[2] However, the plaintiff is employed as a teacher by the board of education of the city of Los Angeles and on October 26, 1936, the respondent Naylor obtained an abstract of said judgment for costs and made his affidavit in connection therewith under the provisions of section 710 of the Code of Civil Procedure, and has taken such action thereunder that unless a supersedeas is issued the judgment for costs will be collected from the plaintiff's salary before the judgment becomes final. For the reason given a writ of supersedeas should issue to restrain any further proceedings [17 Cal. App. 2d 422] to collect said costs until the remittitur is issued on the appeal. Petitioner to pay costs of this proceeding.

Let the writ of supersedeas issue.

Wood, J., and McComb, J., pro tem., concurred.