Powers

These two appeals have been considered together. The last-named is a proceeding in a case brought to restrain defendant Powers from transferring a certain promissory note. Powers answered, and, by a cross-complaint, sought to foreclose a chattel mortgage. A decree of foreclosure was entered, and plaintiffs appealed, giving two bonds, one for three hundred dollars, and a stay bond in double the amount of the judgment, with Pardee and Chabot as sureties.

The judgment having been affirmed, upon return of the remittitur, a sale was had of the mortgaged property, from which only a part of the debt was realized. Motion was then made for judgment against the sureties on the stay bond for the deficiency. Judge Crane refused to entertain the motion, and application was made by Powers to this court for a mandate, which was refused on the ground that no stay bond was required in such cases. It was therefore held that the stay bond was without consideration and void. (Powers v. Crane, 67 Cal. 65 .)

Chabot having died, a claim was presented against his estate for the deficiency, and was rejected March 30,1888.

June 4, 1889, Powers commenced the proceeding in the original suit to obtain a…