Dore v. Covey

California Supreme Court Jul 1, 1859Published

Before: Baldwin

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Holding. An appeal undertaking is a valid, binding contract even if it does not strictly conform to statutory requirements regarding penalty amounts or surety descriptions, provided the appellant received the benefit of a stay of execution. The statutory provisions governing such bonds are directory rather than mandatory, and a party who accepts the benefit of the stay cannot later challenge the bond's validity.

Issues

Whether an appeal undertaking is valid and binding if it fails to strictly conform to statutory requirements for penalty amounts and surety descriptions.
Whether the stay of execution constitutes sufficient consideration to support an appeal undertaking under the Statute of Frauds.
Whether the failure to include the names of the stipulators in the body of the instrument invalidates the undertaking.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The undertaking is one entire contract, though containing two several stipulations. It is the act of both the parties signing.”

“We think the execution of the writing in less than double the amount of judgment does not vitiate it as a statutory undertaking. This provision is merely directory.”

“The statute accords the effect of a stay to the execution of the undertaking. This stay is a sufficient consideration.”

Synopsis

Ik an undertaking on appeal, the names of the sureties need not appear in the body of the paper.

The stay of proceedings, accorded by the statute to the execution of the undertaking, is a sufficient consideration.

Non-compliance with the directory provisions of the statute, intended for the benefit of the Respondent, does not vitiate the undertaking.

Residence of the sureties, and their occupation, and that the penalty must he double the amount of the judgment, are directory provisions.

The execution of the paper, the delivery of it to the Clerk, filing it among the papers with the affidavit, and the actual suspension of proceedings, is prima facie, as sufficient proof of delivery, if delivery is essential, as if the instrument were sealed.

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

Suit was brought by the plaintiffs below, Appellants here, upon the following instrument; and, upon a proper construction of its terms, the appeal depends. The paper is in these words:

“State of California, County of Sacramento.

In the District Court, Sixth Judicial District.

M. Dore & Co. plaintiffs, v. J. R. Hardenbergh, defendant: Whereas, on the twenty-sixth day of March, 1857, judgment was rendered in the above entitled cause, in favor of said plaintiffs, for the sum of three thousand four hundred and fifty-four dollars and fifty cents, and the sum of thirty-five dollars and twenty-five cents costs; and, whereas, the said defendant is about to appeal from the judgment of said District Court to the Supreme Court of this State:

How, therefore, wo, the undersigned, do agree, undertake, and become bound, on the part of the Appellant, to the effect that the said Appellant will pay all damages and costs which may bo awarded against him on his appeal, not exceeding three hundred dollars; and, whereas, said Appellant is desirous of a stay of execution in said cause, we, the said Charles Justis, residing at Johnson’s Ranch, in the county of Sutter,

do further undertake, and become bound, in the sum of six thousand and eight hundred dollars, that if the judgment appealed from, or any part thereof, be affirmed, the Appellant shall pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the Appellant upon this appeal.

(Signed) Charles Justis,

H. R. Covey.

County of Sacramento, ss:

Being each for himself duly sworn, doth depose and say, that

[507]he is worth double the amount specified in the foregoing undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution.

Charles Justis, • H. R. Covey.

Dore v. Covey

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