First National Bank v. Stansbury

I dissent. I am unable to agree with the reasoning or conclusion of the main opinion wherein *Page 193 the power of the trial court to control the issuance of process in the action before it, is denied. It is well settled that courts have power temporarily to stay execution on judgments rendered by them whenever it is necessary to accomplish the ends of justice. (United States v. McLemore, 45 U.S. (4 How.) 286 [11 L.Ed. 977]; 23 Cor. Jur., pp. 521, 522.) The judgment, execution on which was stayed by the trial court herein, is a judgment of that court whenentered after the going down of theremittitur. (See Granger v. Sheriff, 140 Cal. 195 [73 P. 816]; Fischer v. Lukens, 41 Cal.App. 358 [182 P. 967].) Furthermore it is a judgment for costs in the very action pending and determined (by reason of the reversal) at the time the stay of execution was ordered. The respondent on the second appeal (who is also respondent herein), which appeal is now pending and undetermined, has compensating claims against the appellant herein, who is also the appellant in the main appeal. If the judgment on that appeal is affirmed the respondent will be entitled to a judgment for costs which may and should be offset against the judgment for costs which the appellant herein is seeking to enforce. If the judgment on the main appeal is reversed, the respondent herein may again urge his claim for an additional credit of over $6,000 against the appellant, which claim the respondent has expressed a willingness to forego, in order to end this protracted litigation. In any event the trial court will be called upon to adjust compensating claims and offsets between the parties before the litigation is terminated. Under these circumstances I see no abuse of discretion in the order of the trial court in staying the hand of one party to an action before it and thus prevent him from harassing the other party with the process of the court prior to a final determination of the action in which the cross-demands are being asserted. *Page 194