Mokelumne Hill Canal & Mining Co. v. Woodbury

Burnett, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.

The plaintiffs obtained judgment in the Court below; and the defendant filed notice and undertaking on appeal. The plaintiff having excepted to the sufficiency of the sureties, they failed to justify to the satisfaction of the clerk, who proceeded to issue execution. The defendant then applied to the Judge of the District Court, who granted an order of supersedeas; and from this order the plaintiffs appealed.

Upon an examination of the proceedings before the clerk, we are satisfied that he was correct in disregarding the undertak[189]ing. The sureties, from their answers, and their refusals to answer pertinent and material questions, would appear to have been unable to respond in the amounts for which they were bound. Most of their property consisted of negotiable promissory notes, the names of the makers of which they refused to disclose. There was evidence tending to show that the notes had been made for the purpose of enabling the sureties to justify.

The action of the District Court in making the order, was erroneous, and the order is, therefore, vacated.