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Can a Court issue an order if the case is on appeal?

Santa Cruz, CA |

I have an appeal over the validity of a contract. The opposing party filed for the Lower Court to enforce the contract. At an Order to Show Cause hearing I told the Court the case is on appeal. The Court ordered me to sell my home and sanctioned me for not following the judgment.
If I sold my home and then won the appeal I doubt if I could get the house back.

Thank You--

Attorney Answers 5


  1. Best answer

    My colleagues are generally correct. But there are some types of orders that are automatically stayed during an appeal, such as affirmative injunctions. Further, there are many ways to perfect a stay of enforcement during an appeal, not limited to posting a bond. An order requiring the signing of an instrument , for example, can be stayed by depositing the signed instrument with the clerk of the court. A judgment requiring the sale of property can be stayed by posting security in an amount set by the trial judge.
    You need to consult with an appellate attorney. See www.SanJoseAppeals.com.

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  2. An appeal does not always prevent enforcement of a judgment. In most cases if you want to prevent enforcement you must post an appeal bond or obtain a court order staying enforcement pending appeal. You obviously did neither.

    You need to personally consult an appellate attorney to: 1) help you with the appeal; and 2) obtain an appropriate order to prevent enforcement of the judgment pending appeal if possible.

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  3. Dear ?,

    When you lose a civil case, the appeal does NOT stop enforcement of the judgment against you UNLESS you get a stay (supersedeas) of the judgment. When you filed your notice of appeal, you were supposed to file a motion for a stay. Generally, a judge will require you to post an appeal bond to get the stay. If the trial court judge denies a stay, then you can ask the court of appeals to give you one.
    But since you apparently didn't do any of this, the judge's order is completely legal.
    You may still have a shot at relief from this order since it is an appealable order. You MUST immediately consult with a good appeal lawyer in your state about this!! You can find one right here on Avvo by clicking on Find a Lawyer at the top of this page or in the Yellow Pages. But do it NOW!! before things get worse for you.

    Yours sincerely,
    Tim Provis
    Cal. Bar No. 104800
    Wis. Bar No. 1020123
    Member: U.S. Supreme Court Bar


  4. When the court orders the sale of marital homes, a contract is irrelevant as it does not matter if it is valid or not. It is marital property that was ordered sold and regardless of a party believes they must comply with orders until the appeal is decided.

    This is not a comprehensive answer. Call us for more information. 619.797.5456 www.mataelelaw.com


  5. In most if not all states, you need to file a motion for a stay of execution of the judgment. The mere filing of an appeal, without a stay, does not stop the enforcement of the judgment.

    Generally you must first seek a stay by the lower court judge, although I acknowledge that may seem futile to you. You can ask the judge for a stay without a bond. Otherwise, you'll be required to file what's called a supersedeas bond. A supersedeas bond provides for payment of the judgment in the event your appeal is ultimately unsuccessful. Contact your local bail bondsman about that.

    If the lower court refuses to grant you a stay period, even with a bond, you can then file for a stay in the appeals court. Regardless of where you file, you should state in the motion that your appeal (1) isn't merely for delay; (2) has good legal grounds (while being respectful); and (3) you don't have sufficient assets to pay the judgment or even post a bond, and therefore unless you're granted a stay you'll effectively be denied your chance to appeal. After that, good luck.

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