| Cal. | Mar 28, 1883
Martin, in appealing to this court from the judgment rendered against him, filed an undertaking with Dager and Hill as sureties. The judgment was affirmed, and on the going down of the remittitur the plaintiff moved, under section 942, Code of Civil Procedure, for judgment against the sureties. Hotice of the motion was served on Dager only. The court entered judgment against him alone.
"We think that it was error to render judgment under that section against one of the sureties only, no reason appearing why the other was not joined, except that he could not be found and served with notice. The section provides for a judgment “ against the sureties ”; and this being a statutory proceeding, the course pointed out by the statute must be strictly pursued. The terms of the bond did not, if it could have done so, authorize a variation from the provision of the statute; it authorized the entry of judgment “against the undersigned sureties.”
Judgment reversed and cause remanded for further proceedings.
Hearing in Bank denied.