60 P. 437 | Cal. | 1900
The respondent recovered a money judgment against the Gray Brothers Artificial Stone Paving Company, from which the defendant therein appealed to the supreme court, and the appellants herein, as sureties for said appellant, executed an undertaking on appeal sufficient in form and amount to stay the enforcement of the judgment. The judgment appealed from was affirmed, and a remittitur from this court was filed in the superior court June 7, 1897. Upon the same day, that court, upon motion of the plaintiff, entered judgment against the sureties upon their undertaking. From this judgment the sureties appealed, and, upon the confession of the respondent therein that the judgment appealed from was prematurely entered, this court reversed the judgment and remanded the cause. Thereafter the superior court, upon the motion of the plaintiff, ordered judgment to be entered against the appellants herein — the sureties on the original appeal — and from the judgment thus entered they have appealed.
The entry of judgment against the sureties upon an appeal bond is not a special proceeding within the definition of section
By the terms of their undertaking the appellants herein did not become liable to the plaintiff until the expiration of thirty days after the remittitur upon the affirmance of the judgment had been filed in the superior court. That court was not authorized, therefore, to render judgment against them upon the same day that the remittitur was filed, and the judgment thus entered was properly reversed. The reversal of that judgment had the effect to annul the action of the superior court and to leave the parties in the same position that they held before it was rendered. Such reversal did not affect the obligation of the sureties upon their undertaking, but their liability thereon was the same as if no judgment had been rendered against them. The plaintiff was still entitled to enforce this liability, and the court was authorized to render judgment therefor against them.
The judgment appealed from is regular in form, and upon its face purports to have been rendered upon the liability incurred by the appellants upon their undertaking in the former appeal. Instead of being impaired by the rendition of the former judgment, it would, if necessary, be presumed that the former judgment was vacated at the request of the appellants. (Paige v.Roeding,
The judgment is affirmed.
*563Garoutte, J., and Van Dyke, J., concurred.