People v. McDonald

THE COURT.

This appeal was placed upon a special calendar of this court upon an order to the respondent to

[717]

show cause why the judgment herein should not be reversed, or that such order be made as might be meet in the premises. At the time of the placing of said cause upon said calendar, and the entry of-said order, it appeared that the appellants’ brief had been filed herein, but that no brief on behalf of the respondent had been filed, although the time for the filing of such brief under the rules of this court had long since expired. In response to said order to show cause the respondent has indicated its willingness to have the matter submitted upon the appellants’ brief. The appeal herein is from a judgment entered by the superior court of Kern County in an action against the appellants on an undertaking of bail executed by them in the sum of two thousand dollars. As their sole ground for reversal of said judgment the appellants urge that the complaint is fatally defective in that it fails to allege that the person for whom the undertaking of bail was executed and delivered had been released from custody. In support of this contention reliance is had on the case of

County of Los Angeles

v.

Babcock,

45 Cal. 252.

We have no quarrel with the doctrine enunciated in that case. It is correctly held therein that an averment of release upon or by reason of the execution and delivery of the undertaking is indispensable in an action thereon and that in the absence of such an allegation a demurrer to the complaint on that ground should be sustained. That case, however, is not decisive here. In the case of

Elizalde

v.

Elizalde,

137 Cal. 634, 637 [66 Pac. 369, 70 Pac. 861, 862], this court declared: “Reversals for lack of formal allegations that might have been supplied by amendment are not favored after trial on the merits.

(Cushing