Nolan v. Fidelity and Deposit Co.

HALL, J.

This is an appeal from a judgment in favor of plaintiff in action on an undertaking given to stay execution of a judgment of the justice’s court rendered in an action in which respondent was plaintiff. The record before us consists of the judgment-roll and a bill of exceptions.

The first point made in the brief of appellant is that the t complaint does not state a cause of action, for the reason that the judgment of the justice’s court is not sufficiently alleged, in that it is simply alleged that “judgment was rendered,” etc., instead of “judgment was duly made and given,” etc. There is no merit in this point. This is not an action on the judgment, where the judgment must be pleaded as the foundation of the plaintiff’s cause of action, but is an action on a stay bond given on an appeal from a judgment, and the rendition of the judgment is pleaded only by way of inducement to the giving of the bond. This section of the code (Code Civ. Proc., sec. 974) which authorizes the appeal contains these words: “Any party dissatisfied with a judgment rendered in a civil action in a police or justice’s court may appeal therefrom to the superior court of the county at any time within thirty days after the rendition of the judgment.” And the next section provides that “When a party appeals to the superior court on questions of law alone,

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he must, within ten da37s from the rendition of the judgment prepare a statement of the ease,” etc. It is the rendition of the judgment which authorizes the appeal, and not the fact that the judgment has been ‘ ‘ duty made and given. ’ ’ Indeed, an appeal is often taken for the ver37 reason that it is claimed by the appealing parts7 that the judgment was not duty mad,e and given. It not infrequentty happens that the point raised on the appeal is that the justice’s court had. no jurisdiction either of the parties or of the cause of action, but, no matter what the point raised on appeal, the condition of the stas7 bond is that the appellant will pas7 the amount of the judgment appealed from and all costs, if the appeal be withdrawn or dismissed, or the amount of ans7 judgment and all costs that mas7 be recovered against him in the action in the superior court. (Code Civ. Proc., sec. 978.) Furthermore, defendant did not demur to the complaint, but answered thereto, and bs7 its answer set forth the bringing of the action bs7 plaintiff in the justice’s court against the defendant for mones7 had and received in the sum of $299, and “that thereafter such proceedings were had therein that on thedas7 of March, 1902, the said justice’s court gave, made, and entered its judgment,” etc., and thus remedied the defect, if any there be, in the complaint. “When the plaintiff has failed to state material facts so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial and the defect cured.”