De Castro v. Clarke

Citations

• 29 Cal. 11

Syllabus

<p>Action-on Undertaking to stay Writ op Restitution pending an Appeal.— In an action on an undertaking executed by and on behalf of the defendants in a judgment in ejectment, conditioned to pay the value of the use and occupation of the premises pending the appeal, an answer setting up that pending the appeal the plaintiff conveyed a part of the premises to one or more of the defendants in the judgment, and had leased portions to other parties, does not state facts sufficient to constitute a defense.</p> <p>Idem,—Such answer failing to show when the conveyance was made, it will be deemed not to have been made until the last day the appeal was pending.</p> <p>Idem.—Such answer is also defective in not stating that the use and occupation of the portions of the premises conveyed and leased was of any value.</p> <p>Right of Action on Undertaking to stay Writ op Restitution.—A right of action on an undertaking executed to stay a writ of restitution pending an appeal from a judgment in ejectment accrues upon the affirmance of the judgment, though the liability of the obligors may continue until the appellants deliver possession of the premises recovered.</p> <p>Recovery on Undertaking to stay Writ of Restitution.—The plaintiff in a judgment in ejectment in an action on an undertaking to stay a writ of restitution pending an appeal, can recover the value of the use of whatever part of the premises the defendants occupied, if the judgment is affirmed.</p> <p>Sureties on Undertaking to stay Writ op Restitution.—If, pending an appeal from a judgment for plaintiff in ejectment, the plaintiff sells or leases a part of the premises recovered, the sureties on an undertaking to stay a writ of restitution pending the appeal are not released from their liability on the same.</p>