The record-union., 1891-03-09
THE COURT.
For the reasons given in the foregoing
opinion the Judgment is affirmed

FooTE, c.
THE COURT.
For the reasons given in the foregoing
opinion the Judgment is affirmed.
Titled March 3, 1871
IN BANK
G. a. SwAsEY, Respondent,
VS..
Z. ii. ADAIR AND MRS. o. No. l3,I1S.
ADAIR, Appellant.
This is an action brought under Sec
tions SOB, CT seq, of the Code of f-Civil Pro-
cedure, for the recovery of certain per-
sonal property, consisting of the furniture
of q clearinghouse.
The plaintiff. at the commencement OF
the action 1iled the necessary affidavit
and undertaking and demanded the de-
livery OF the property TO him.
The defendants are husband and wife.
but they appeared separately in the ac-
ton and the husband made no defense.
ihe wife, Mrs. o. Adair, filed an answer
claiming the property as her own, and
gavea bond conditioned as required by
law, whcreupon the property was re-
delivered to her. AT the trial she aud her
husband both failed to appear and judg-
ment was entered against them Jointly
for the return of the property, or its value,
$500, andfor costs. Subsequently, upon
her motion,t the Judgment against her
was set aside and q, new trial granted TO
her.; but appareptiy the. Judgment as
against heri' husband Was allowed to stand.
The case was thereafter tried upon the
issues made by her answer to the COM
plaint, and u second and Separate judg-
nent rendered against her for the rettirn
of the goods, or their value, fixed at 1900,
and for costs. From this Judgment and
from an order denying her motion for a
new trial She has appealed to this court,
mr. Hn,.ta l-i fns.
but no undertaking to stay proceedings.
The plaintiff and respondent has caused
execution to be issued, not upon the
Judgment appealed from but upon the
first judgment entered, as above stated,
against the appellant and her husband
and left to stand against him when set
aside .as to her. Under this execution
the5Sheriff is threatening to tax e the prop
erty in controversy from the possession
Of Mrs. Shaeffer, who claims it as a
vendee of party to whom it was sold
and delivered by the appellant after its
re-delivery to her.
Upon q verified petition, showing these
facts, appellant now moves this court for
a writ of stperSededS directing the Sheriff
to return said execution and commanding
stay of all proceedings on said judg-
ment pending the determination of her
appeal.
The case presents some anomalous feat
ures: There are two separate judgments
in favor of the plaintiff for the return of
the same goods or their value, fixed in
one Judgment at $500 and in the other at
5000. One judgment being against G.
II. Adair, the husband, and the other be-
ing against the appellant, Mrs. o. Adair,
his wife. Execution is issued on the
Judgment against the husband, and under
it the Sheriff is threatening to take the
goods in controversy from the vendee of
the wife, to whom they We're sold after
re-dellvery to her upon her giving the
statutory undertaking. &c. g. p, Sec.
5I4.)
q In aid of her appeal from the Judgment
against her and for the protection of her
vendee appellant asks us to stay proceed
ings upon the Judgment against her hus-
band, from which there has been no APP
peal.
Several questions arise upon this state
of facts, but we shall confine ourselves to
a discussion of those which we deem
essential in the disposition of the motion
before us. .1
1t seems impossible that the Sheriff
could rightfully take the goods from
appellants vendee under an execution
issued upon separate judgment against
G. III. Adair, between whom and said
vendee there is no sort of privity, but
whether we can on this appeal interfere
with the proceedings on that Judgment is
q question not free from difficulty, and
one which we do not care to decide unless
tits clear thatsthe appellant is entitled to
stay of proceedings on the Judgment
from which she has appealed.
Is she then entitled to such stay without
having given q stay bond?
1t is contended that in this respect the
action of replevin differs from other
actions, and that the defendant, having
given the redelivery bond prescribed by
Section 514 of the Code of Civil Procedure
is entitled to retain the property until the
final determination of the case on appeal
without other security.
In support of this proposition we are
referred to the language of said section, to
Section 12i7 of Cobbey on Replevin and
to Corn Elk. Blk. VS.. Blye (l02 n. Y. 305),
but we find nothing in either of the cita-
tions to support the contention of appel
lant
The language of Section 514 of the Code.
of Civil Procedure is not at all inconsistent
with the proposition that judgment for
plalntlff, IN an action for the recovery of
personal property, is Immediately enforce
able by return of the property in specie,
unless the defendant gives an additional
bond to stay proceedings pending his ap-
peal. On the other hand, Section 943 of
the Code of Civil Procedure expressly
provides that, ''if the judgment appealed
from direct the delivery of per-
sonal property, the execution of the judg-
ment cannot be stayed by appeal unless
the things directed to be delivered be
placed in the custody of such officer or re-
ceiver as the court may appoint, or unless
an undertaking be entered into on the
part of the appellant to the eff
feet that the appellant will obey the order.
of the appellate court upon the appeal"
For these reasons we think the appel.
liant is not entitled to an order of this
court for a stay of proceedings on the
judgment from which she has appealed.