Foster v. Fernandes

THE

Upon submission of the cause in open court, the Chief Justice announced the decision of the court as follows:

In this action to recover certain cattle, or the value thereof, together with damages for their wrongful detention, judgment was entered for plaintiff. After motion for new trial made and denied, defendants gave notice of appeal, and, in due time, filed an undertaking on appeal in the sum of fifteen thousand dollars, properly conditioned to stay execution. Thereafter the respondent having excepted to the sufficiency of the sureties, appellants served notice that the sureties would justify before the court on the third day of December, 1926, on which day they appeared in court with the sureties. After due examination, the trial court found the sureties were qualified to act as such, but refused to permit them to justify on the ground that they appeared one day too late, the delay being explained by the fact that the appellants erroneously believed they had until December 3, 1926, within which to have said sureties justify. Execution was thereupon issued on behalf of the plaintiff upon the judgment entered in the cause, and the appellants have applied to this court for writ of

supersedeas.

Under the rule stated in

Nonpareil Mfg. Co.

v.

McCartney,

143 Cal. 1 [76 Pac. 653], and

Segarini

v.

Bargagliotti,

193 'Cal. 538 [226 Pac. 2], good faith having been shown by appellants, we deem it proper, in the exercise of sound discretion, to grant them the writ prayed for, upon such terms as will be just and will adequately protect the rights of the respondent, in order to preserve the

status quo

until the final determination of the action.

It is ordered that, upon the filing by petitioners, with the clerk of this court, within fifteen days, of a good and suffi

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