Adler v. Staude

[183]

VAN DYKE, J.

This action is based upon an appeal bond. The bond was given on an appeal to the superior court of the city and county of San Francisco from a judgment of the justice court of said city and county, in an action of Sol Adler against Jean Liurette. The bill of exceptions contains the following agreed statement of facts: “The bond which is the subject of the action was given in the justice’s court suit wherein Sol Adler was plaintiff and one Jean Liurette was the only defendant. Judgment was duly and regularly pronounced in said suit by John A. Carroll, justice of the peace, in favor of plaintiff, Adler, and against said defendant, Liurette. In recording said judgment upon a printed blank provided therefor by the clerk of said justice court, the given name of said defendant, ‘Jean,’ was properly written therein, but, by a mistake of the clerk of attorney for plaintiff, in writing said record of said judgment, the name ‘Esperance’ was written in one place in the body of said record instead of ‘Liurette.’ In the title of said record of said judgment the name ‘Sol Adler,’ as plaintiff, and ‘Jean Liurette,’ as defendant, were properly written. One Antoine Esperance was the assignor of plaintiff in said suit of Adler

v.

Liurette.” After the appeal was taken the said mistake in the record was corrected by order of the justice.

The appellants contend,—1. That at the time of the execution of the undertaking no judgment had been rendered against Liurette, and consequently there- was no consideration for the undertaking; and 2. The justice of the peace had no power to amend or modify the judgment, except in case of a default. It is, however, recited in the bond executed on the part of the defendants as sureties that on the eighth day of February, 1897, a judgment was rendered by John A. Carroll, Esq., one of the justices of the peace of said court, in favor of the plaintiff in that action “against Jean Liurette, the defendant, . . . and whereas the said Jean Liurette is dissatisfied with said judgment and desirous of appealing therefrom to the superior court of the city and county of San Francisco, state of California, now, therefore, in consideration of the premises and of such appeal, we, the undersigned, J. B. Carrere and Fred Staude, do hereby jointly and'severally undertake, . . . and whereas the said appellant claims a stay of proceedings and is desirous of staying the