Boob

This is an action to foreclose a mortgage in which a decree of foreclosure was rendered for plaintiffs, from which defendants have appealed. The sheriff sold the property, and is about to give a deed to the purchaser; and this case is now before us on a motion of defendants to set aside the sale, and restrain the sheriff from executing a deed, upon the ground that defendants have given an undertaking on appeal which stays execution. The undertaking is in the penal sum of one thousand dollars, and provides that, in case the judgment is affirmed, the appellants will not suffer waste, and will pay the value of the use, etc., of the premises, and also any deficiency that may arise upon the sale; and the undertaking recites that the said one thousand dollars is the amount fixed by the judge of the court to include the said deficiency.

There is certainly no provision of the code applicable to the matter of a bond for a deficiency judgment upon appeal from a decree foreclosing a mortgage other than section 945 of the Code of Civil Procedure; section 942, which requires a bond in double the amount of the judgment, is clearly not applicable. It refers solely to a judgment in personam, for…

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…