Estate of Kennedy

TEMPLE, J.

This appeal is from a judgment rendered against the sureties on an undertaking given to secure a stay of proceedings on appeal to the supreme court, after notice, and in pursuance of a stipulation contained in the undertaking. The appeal is by the sureties.

The undertaking was given on appeal from a decree of final distribution in the above estate dated July 27, 1896. The appeal was taken November 27, 1896, at which time the decree had not been entered, for which reason the appeal was dismissed as prematurely taken. The dismissal,' under such circumstances, did not operate as an affirmance of the judgment.

(Brady v. Burke,

90 Cal. 1;

Home for Inebriates v. Kaplan,

84 Cal. 486;

Estate of Pearsons,

119 Cal. 27.) And, moreover, since the appeal was absolutely void it did not deprive the lower court of jurisdiction, and no stay of proceedings was effected.

(Brady v. Burke, supra.)

The fact that an appeal was not secured did not operate to render void the undertaking given as required by law to make the appeal effectual. The sureties on such an undertaking agree to be liable if the appeal be dismissed, and, since the respondent must be at some expense to have even a void appeal disposed of, there is a consideration for the undertaking. This

[386]

reasoning has no application whatever to an undertaking required merely to secure a stay of proceedings during an appeal which has already been taken.

The appellants here contend not only that the appeal was an absolute nullity, but that the decree of distribution was also void, and therefore there was no decree to be stayed by an undertaking, and there was an absolute lack of any consideration. The decree of distribution is said to be void because it was made after an appeal had been taken from the decree of final settlement and while that appeal was pending. It is contended that no decree for a final distribution can be made until there is a final settlement of the accounts of the administrator, and that such settlement cannot be said to be final while an appeal is pending from the decree.