To hold that under section 945 the judge may fix the amount of the undertaking for the deficiency required, in order to stay proceedings upon an appeal from a judgment for the sale of mortgaged premises, is to make a law, rather than to give construction to a law that has been enacted by the legislature. The legislature has given the judge authority to fix the amount of such undertaking for only two purposes, viz., to secure the respondent against waste, and for the recovery of the value of the use and occupation in case the judgment is affirmed. Where the judgment is for the sale of mortgaged premises an undertaking for the value of the use and occupation is not required (Englund v. Lewis, 25 Cal. 354), and, consequently, no order fixing the amount is proper. The legislature has said in clear and unambiguous language that “ when the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency.” This is an absolute requirement, and cannot be limited by any order of the judge. To give to this clause the construction that, instead of providing for the payment of the deficiency—that is, the whole deficiency—the undertaking need provide for the payment of only such sum as the judge may determine will be the deficiency, is to interpolate into the clause a provision that the legislature has not made, and to give to the appellant a stay of proceedings with*419out securing to the respondent the means of satisfying his judgment. In the present case the judge did not make any order fixing an amount for which an undertaking should be given to secure payment of the deficiency; but made an order fixing “ the amount of the undertaking upon such appeal to stay the execution of said judgment under and for the purposes of section 945 of the Code of Civil Procedure,” in the sum of one thousand dollars.
Whether it is a hardship upon an appellant to require an undertaking for the deficiency, in addition to holding the mortgaged premises as security for the judgment, is for the legislature to determine. Whether the execution of such judgment shall be stayed pending an appeal, without any security, or whether the appellant shall be compelled to give security, and, if so, the amount thereof in order to entitle him to such stay, are matters purely of legislative control. It may be added, however, that the liability upon an undertaking for the deficiency will be no greater than the disparity between the value of the mortgaged premises and the amount of the judgment, and that, if they are of greater value than the amount of the judgment, there would be no liability upon such undertaking. If their value is insignificant, or if they are not of as great a .value as the amount of the judgment, the respondent is entitled to an undertaking which will fully guarantee to him the collection of his judgment, as much as in the case of an appeal from an ordinary money judgment. If, upon the appeal, the money portion of the judgment should be affirmed, but it should be held”that it is not secured by the mortgage, the respondent would not be fully secured by the undertaking. The rule laid down in Englund v. Lewis, 25 Cal. 337, has been followed for upwards of thirty years, and, if it is to be changed, it should be done by legislative act, rather than by judicial decision.