Taylor v. Shew

39 Cal. 536 | Cal. | 1870

Sprague, J.,

delivered the opinion of the Court:

This is an action brought upon two -judgments, alleged to - have been recovered by plaintiff against defendant in the-Court of Common Pleas of the City and County of New York, State of New York. The complaint is'in the usual form, containing a count for each separate judgment.

The specific denials of the answer, in the form presented; dó not put in issue the material allegations of the complaint, and the substantive matter therein alleged in bar of the action, does not constitute a defense thereto. (Scott v. Pilkington, 110 Eng. Com. Law Rep. 2 Best & Smith, Q. B. 11; Nill v. Comparet, 16 Ind. 107; Burton v. Reeds, 20 Ind. 87; Suydam v. Hoyt, 1 Dutcher, N. J. 231.)

The substance of the matter alleged in bar of the action, is that within due time after the rendition of the judgments sued upon, defendant appealed therefrom to the Court of Appeals of said State of New York; perfected such appeal by filing an undertaking on appeal, as required- by the laws of New York, in the sum of $250; caused the proper return to be made and filed with the Clerk of said Court of Appeals, and otherwise duly performed all the conditions and acts required to be performed by him in the premises; and that said appeal was and is being prosecuted with "all due diligence ; that said appeal is still pending and undisposed of, and Avas so pending and undisposed of at the commencement of ijhis action, and that no determination thereof • can be had for six months or more.

The answer does not allege that the appeal, as taken and perfected to the Court of Appeals from said judgments had, by the laws of New York, the' effect of suspending the judgments thus appealed from, or of staying the execution thereof, nor is it alleged that the undertaking on such appeal was to the effect that the sureties' ther.eon were bound in double the amount named in the judgment; that if the judgment appealed from, or any part thereof, be affirmed, the appellant would pay the amount directed to be paid by the judgment, or that any order was entered staying proceedings upon or execution of the judgment.

In the absence of any proof to the contrary, the presumption is that the effect of the alleged appeal by the laws of New York is the samé as in this" State; and in this State such appeal would not stay execution or proceedings for the collection of the amount of the judgment appealed from, pending the ‘ appeal, nor destroy or weaken the force and effect of the record of the judgment as evidence of the facts or matters necessarily determined thereby.

Whether by an appeal from a judgment, in which appellant had given an undertaking on appeal in form and amount sufficient to stay proceedings for its enforcement, the effect of the record of the judgment as evidence is thereby suspended or nullified, is a question not involved in this case.

Judgment affirmed.