Houghton v. Superior Court , 187 Cal. 661 ( 1922 )

I concur in the decision, although I am of the opinion that the trial court was in error in excluding the judgment pleaded by defendant as a setoff and should have admitted it in evidence and proceeded with the trial, since, although an appeal had been taken from the judgment, no stay bond had been filed, and, under section 942 of the Code of Civil Procedure, the judgment continued in effect for all purposes of its enforcement, and defendant had a right to use it as a setoff against the plaintiff's claim (Dowdell v. Carpy, 137 Cal. 33, [70 P. 167]; Sewell v. Price,164 Cal. 265, [128 P. 407]). However, as it was excluded from evidence upon petitioner's objection that it had not become final, he is not in a position to protest a postponement of the trial to await the determination of the appeal.