This is an application for a writ of supersedeas.
In the superior court of San Diego County, on July 7, 1897, an action was begun, entitled Free Gold Mining Co. v. James Spiers et al. Charles W. Pauly was appointed receiver, *Page 83 and on June 21, 1902, an order was duly and regularly made settling his account current as receiver, and directing him to pay out of the moneys in his hands, as such receiver, certain claims for expenses incurred by Isaac Trumbo, a former receiver in the action, amounting to over forty-nine thousand dollars. On October 10, 1902, the petitioner herein appeared and asked leave of the court to file a petition in intervention in the action, which was afterwards denied by the court; but as it does not affect the present proceeding, it need not be further noticed. On February 6, 1903, it again appeared in the said action and moved the court to vacate the order of June 21, 1902, settling the receiver's account and directing the payment of the claims, which motion was dismissed by the court. This, in legal effect, was the equivalent of a denial of the motion. (Davis v. Hurgren, 125 Cal. 48; Lang v. Superior Court, 71 Cal. 491; Voll v. Hollis, 60 Cal. 569; Warden v. Mendocino Co., 32 Cal. 655.) From the order of dismissal the petitioner has appealed to this court, giving the ordinary undertaking on appeal for three hundred dollars, as required by section 941 of the Code of Civil Procedure. The contention is, that under the provisions of section 949 of the Code of Civil Procedure, the giving of this undertaking stays all proceedings on the order directing the receiver to pay the claims; and as the receiver threatens to proceed under the order, the petitioner asks this court to issue the supersedeas.
Section 949 provides that in all cases not provided for in sections 942, 943, 944, and 945 the perfecting of the appeal by giving the three-hundred-dollar undertaking mentioned in section 941, "stays proceedings in the court below upon the judgment or order appealed from." Here the order appealed from is the order of February 6, 1903, refusing to vacate the former order directing the payment by the receiver of the claims. The petitioner contends that the appeal from this latter order relates back to and stays proceedings upon the former order. In support of this contention it cites the cases of Fulton v. Hanna,40 Cal. 278, and Owen v. Pomona L. and W. Co., 124 Cal. 332, to the effect that on an appeal from an order denying a motion for new trial where an undertaking is given which would be sufficient *Page 84 to stay proceedings if the appeal were from the judgment, it has the effect of staying such proceedings, although it is not a direct appeal from the judgment. The reason for this ruling, as stated in Fulton v. Hanna, 40 Cal. 278, is, that a "reversal on appeal from the order denying a motion for new trial, and remanding the cause for retrial, as effectually vacates the judgment as a reversal of the judgment upon a direct appeal therefrom; and when a full bond is given on the appeal from such order" the court could see no reason why it should not also stay proceedings on the judgment. The conclusion reached by the court in that case involves a proposition not expressly stated in the opinion nor in any case following it. It may be stated thus: A reversal of an order denying a new trial has the same effect as an order granting a new trial, which is to vacate the judgment. A reversal of a judgment upon a direct appeal has precisely the same effect, and no more; it merely vacates the judgment. The relief being in form and substance the same in both cases, an appeal from an order denying a new trial should be held to be, in legal effect, an indirect appeal from the judgment; and, thus considered, the rule with respect to a stay of proceedings on such indirect appeal should be the same as upon a direct appeal from the judgment, and all the requirements of the code in regard to undertakings for stay of proceedings on appeal from different forms of judgments should be held applicable also to appeals from orders denying a new trial after such judgments. The same rule was adopted in Green v. Hebbard, 95 Cal. 40, which was an appeal from an order denying a motion to vacate an order for a writ of possession. The court apparently treated it, in effect, as an appeal from the former order directing the issuance of the writ, and as subject to the same provisions as to the stay-bond required, but no reasons are given, nor is the rule stated.
The decision might have been more satisfactory, and the logical results would have been less troublesome, if the court had declined to give the relief upon this theory as to the nature of such an appeal, and had adopted the policy of itself giving the stay of proceedings under its inherent power to preserve to a party the fruits of an appeal of which it has jurisdiction, by ordering a stay of proceedings upon the giving of a bond sufficient to protect the adverse party. But *Page 85 the rule, as applied to such appeals, is settled by long acquiescence and repeated subsequent affirmations of its existence, and, as it certainly tends to secure substantial justice, we have no wish or design to disturb it.
The conditions and circumstances affecting those cases are so different from those affecting the present case that we do not feel justified in extending the rule so as to include cases like the one under consideration. The present appeal is from an order denying a motion to vacate a former order. The former order thus attacked directed the payment of a large sum of money, amounting to nearly fifty thousand dollars. And, of course, similar orders in other cases might involve much larger sums. The appeal is perfected by the giving of an undertaking in the paltry sum of three hundred dollars, which is all the security the respondent can obtain for all costs and damages that he may suffer by reason of the appeal and the delay consequent thereon. The item of interest on the money, to which the adverse party would be entitled if the appeal is unsuccessful, during the time required to dispose of the appeal, would alone amount to many times the amount of the undertaking. Under the ruling in Fulton v. Hanna,40 Cal. 278, the party appealing from an order denying a new trial must give the same bond to stay proceedings as upon an appeal from the judgment. Upon an appeal direct from an order directing the payment of money there can be no stay of proceedings unless the appellant give an undertaking in double the amount of money named in the order. Upon this appeal from the order refusing to vacate the former order, there is no provision requiring such an undertaking, and the appellant asks for thissupersedeas to stay the payment of this money upon the three-hundred-dollar undertaking alone, which is practically no security for the damages involved.
The practice also is different. Upon the reversal of an order denying a new trial, the uniform practice of this court is to vacate the judgment, grant the new trial, and remand the cause for a retrial. Upon the reversal of an order refusing to vacate a former order, the practice generally is not to directly vacate the former order, but to remand the cause, with directions to the court below to set aside the former order. (People v. Grant,45 Cal. 98; San Jose v. Fulton, *Page 86 45 Cal. 316; De La Montanya v. De La Montanya, 112 Cal. 119.1) The former order is not vacated until the remittitur goes down and there has been further action in the court below. The reversal does not, ipso facto, vacate the former order, as does the reversal of an order denying a new trial.
Under these circumstances we are of the opinion that the case should be decided upon the strict letter of the statute. Under section 949 of the Code of Civil Procedure upon an appeal from an order of this character, it being a case not provided for in other sections, the giving of an undertaking for three hundred dollars "stays proceedings in the court below upon the order appealed from." It does not provide that the giving of the undertaking shall stay proceedings upon all former orders made in the case, nor that the stay upon the second order shall relate back to and operate upon proceedings under the first order. The only effect is, that if there can be any proceedings under the order refusing the motion to vacate, which is the "order appealed from," such proceedings are stayed by the appeal.
The petition for a writ of supersedeas is denied.
Angellotti, J., Lorigan, J., Van Dyke, J., McFarland, J., and Henshaw, J., concurred.
Rehearing denied.
Beatty, C.J., dissented from the order denying a rehearing and filed the following opinion on the 2d of October, 1903: —
1 53 Am. St. Rep. 165, and note.