165 P. 1 | Cal. | 1917
This action was brought to recover from defendants the sum of two thousand dollars for which it is alleged they are liable upon an undertaking in that amount executed by them as sureties in a criminal action and which was declared forfeited by the superior court of San Luis Obispo County for breach of its conditions. These are all the allegations in the complaint respecting said undertaking, save that it is annexed to the complaint as a part thereof.
The undertaking sued on is a bond on appeal. It is entitled People of the State, etc., Plaintiff, v. Teofil Klempke Defendant, and recites and provides that an order having been made by the superior court of San Luis Obispo County admitting said defendant to bail pending appeal in the sum of two thousand dollars, "We, A.M. Ryal . . . and Henry C. Hansen . . . hereby undertake . . . that Teofil Klempke will surrender himself in execution of the judgment upon its being affirmed or modified, or upon the appeal being dismissed, or . . . in case the judgment is reversed and the cause remanded for a new trial that he will appear in the court to which said cause may be remanded and submit him. self to the orders and decrees thereof, or if he fails to perform either of these conditions, that he will pay to the state of California the sum of two thousand dollars." The italics ours. Defendants signed the bond and justified upon it; it was thereupon approved and filed and the defendant Klempke was released under it. *36
Defendants filed a general demurrer to the complaint which was overruled, and having failed to answer within the time allowed, judgment for the penal amount of the bond was entered against them. They appeal from the judgment presenting thereunder the sole question of the validity of the order overruling their demurrer.
This bond, set out in the complaint and sued on, is assumed to have been, and doubtless was, given as a bond on appeal under sections
It is asserted by respondent that the bond is good in every particular except that the word "he" was inadvertently used instead of the word "we," and that the real intent and purpose in giving the undertaking was to give a bond making the sureties primarily liable. But the trouble with this position is that there are no allegations of any inadvertence, lack of true intent, or mutual mistake on the part of any one in the preparation and giving of this bond. It does not appear by whom it was prepared or presented or approved. All that appears is that it was accepted and approved in just the terms it contains. There is no room for the application of any rules of construction. There is nothing uncertain or doubtful or indefinite about its terms. The language of the bond is clear. It is plain the sureties agreed that their principal would pay but they did not agree thereunder to pay anything themselves. The code provisions, it is true, contemplate that the sureties on a bail bond should so bind themselves and that the bond should so provide, but the trouble with the bond here is that it does not do so and this court cannot make a different contract for the parties than they themselves have made.
The judgment appealed from is reversed.
Melvin, J., and Henshaw, J., concurred.