Cheesman

A judgment was rendered against the appellant in the justice’s court presided over by the respond ent, J. Walter Hanby, for the sum of $74.67. She gave hotice of appeal to the superior court on both the law and the facts and gave a bond for costs in the sum of $100. She gave no bond for a stay of proceedings as required by section 978 of the Code of Civil Procedure, and claims that no such bond is necessary when the appeal is on both the law and the facts. An execution was issued on the judgment by the justice of the peace after the appeal was taken and levied upon a claim of $20.19 due the appellant. Thereupon the appellant brought this action in the superior court to enjoin the respondent justice of the peace and the respondent constable from enforcing the judgment. The superior court denied the appellant’s prayer for an injunction and she takes this appeal from that judgment.

It is conceded that, if the appeal had been on the questions of law alone, the execution of the judgment would not be stayed without a stay bond in double the amount of the judgment (Rushton v. Reeve, 178 Cal. 199 [ 172 Pac. 608 ]). Section 978 of the Code of Civil Procedure makes no distinction between…