Tevis and Baldwin were the sureties on the undertaking given on the appeal from the judgment originally entered in this cause (75 Cal. 1); and when, on the fifth day of May, 1888, the plaintiff moved the court below for judgment against the present defendant, executor of the will of the original defendant, for alimony and costs, she also moved that the judgment be entered up as a judgment against the sureties, as well as against said defendant, and in entering the judgment it was so done. From the judgment so entered against them, the sureties appeal.
So long as the plaintiff was not entitled to recover against the defendant, she could not recover against the sureties. (Parnell v. Hancock, 48 Cal. 452.)
On the authority of that case, and of Sharon v. Sharon {ante, p. 424, this day decided), the judgment appealed from in this case, being the judgment entered in this cause against Lloyd Tevis and E. J. Baldwin, June 23, 1888, upon the motion of the plaintiff made May 5,1888, is reversed, and the court below is directed to enter an order denying plaintiff’s said motion.
Works, J., and Paterson, J., concurred.