Mersfelder v. Spring

BEATTY, C. J.

This is a motion to dismiss an appeal based upon the following amendment to section 954 of the Code of Civil Procedure, approved March 16, 1895, (Stats, of 1895, p. 59): “When it is made to appear to the satisfaction of the court, or a judge thereof, from which the appeal was taken, that a surety or sureties upon an appeal bond from any cause has or have become insufficient, and the bond or undertaking inadequate as security for the payment of the judgment appealed from, the last-named court, or a judge thereof, may order the giving of a new bond with sufficient sureties, as a condition to the maintenance of the appeal. The said bond or undertaking shall be approved by the last-named court, or a judge thereof; and in case said sureties fail to justify before said last-named court, or a judge thereof, or fail to comply with the order to appear and justify, execution may issue upon the judgment as if no undertaking to stay execution had been given.”

It appears from the papers upon which the motion was submitted that the notice of appeal herein was served in November, 1900, and that an undertaking in due form was properly filed. Thereafter the following order was made by the superior court:—

“The motion of the plaintiff for an order requiring the giving of a new bond with sufficient sureties as a condition to the maintenance of the appeal to the supreme court, coming on this day regularly to be heard, C. F. Humphrey, Esq., appearing for the plaintiff, and no one appearing for the defendant, and it having been proved to the satisfaction of this court that notice of this motion was regularly served upon the

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attorney of record for said defendant, and it further appearing to the satisfaction of the court that the defendant heretofore appealed from the order denying the motion for a new trial in this ease and gave a bond therein for the payment of costs and for a stay of proceedings pending said appeal, and that since the giving of said bond the sureties upon such appeal bond have become insufficient and the undertaking inadequate as security for the payment of the judgment in said cause,—

“It is ordered, that the said defendant within ten days of the service on her and her attorney of record of a copy of this order, give a new bond with sufficient sureties as a condition to the maintenance of said appeal.”