Hawley v. Gray Bros. Artificial Stone Paving Co.

HARRISON, J.

The respondent recovered a money judgment against the Gray Brothers Artificial Stone Paving Company, from which the defendant therein appealed to the supreme court, and the appellants herein, as sureties for said appellant, executed an undertaking on appeal sufficient in form and amount to stay the enforcement of the judgment. The judgment appealed from was affirmed, and a

remittitur

from this court was filed in the superior court June 7, 1897. Upon the same day, that court, upon motion of the plaintiff, entered judgment against the sureties upon their undertaking. From this judgment the sureties appealed, and, upon the confession of the respondent therein that the judgment appealed from was prematurely entered, this court reversed the judgment and remanded the cause. Thereafter the superior court, upon the motion of the plaintiff, ordered judgment to be entered against the appellants herein—the sureties on the original appeal—and from the judgment thus entered they have appealed.

The entry of judgment against the sureties upon an appeal bond is not a special proceeding within the definition of section

23

of the Code of Civil Procedure, hut is a part of the procedure in the original action authorized by section 9-12 of the Code of Civil Procedure, and is in sequence of the judgment rendered

[562]

therein, against appellant. Under the provision of this section the sureties stipulate that upon the affirmance of the judgment appealed from, if the appellant does not pay the same “within thirty days after the filing of the remittitur,” judgment may be entered against them for the amount of said judgment, with the interest that may then be due thereon. They thus make themselves parties to the original action and the proceedings against them are all taken in that action.

By the terms of their undertaking the appellants herein did not become liable to the plaintiff until the expiration of thirty days after the

remittitur

upon the affirmance of the judgment had been filed in the superior court. That court was not authorized, therefore, to render judgment against them upon the same day that the