Karth v. Light

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring.

In 1857 the plaintiff recovered a judgment against Houck and Meyers, for the possession of certain premises, situated in the city of Sacramento. From the judgment Houck appealed to the Supreme Court; and to stay its execution, pending the appeal, filed the undertaking upon which the present action is brought. The undertaking provides, in the terms of the statute, that the defendants “ will not commit, or suffer to be committed any waste thereon ; and that if the judgment be affirmed, they will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of the possession thereof, pursuant to the judgment, not exceeding two thous- and dollars.” By this undertaking, proceedings upon the judgment were stayed. At the January term of 1858, the appeal was dismissed by the Supreme Court, for want of prosecution ; and the question presented for determination is, whether this dismissal was equivalent in law to an affirmance of the judgment, within the statute ? Upon the solution of the question, the liability of the sureties on the undertaking depends. The Court below held, that the dismissal of the appeal was not such an affirmance of the judgment, and as hence there could be no breach of the undertaking, ordered a nonsuit.

The object of the undertaking was to retain the defendants in the ejectment, in the possession of the premises, pending the appeal, and at the same time to afford indemnity to the plaintiff for any loss he might sustain, by the deprivation of the use of the premises, or by waste committed thereon—if the judgment in his favor should not be [326]reversed by the appellate Court. The appellant, in fact, asserts a right to retain possession against the judgment, upon the ground that such judgment will be ultimately held invalid by the Court to which he has appealed. Whether, then, the dismissal of an appeal is to be deemed equivalent to an affirmance of the judgment, will depend upon the question whether, after such dismissal, the judgment can be again open to examination; and upon this question the rules of the Court give the answer. By statute the appellant is required to furnish the requisite papers for the hearing of the appeal, and if not thus furnished the appeal may be dismissed. (Prac. Act, as amended in 1854, sec. 346.) And by the rules of this Court—which were in force at the time—when an appeal is perfected, and the statement settled twenty days before the next succeeding term, the transcript of the record must be filed on or before the first day of such term, or the appeal may be dismissed, on motion; and, unless the cause thus dismissed be restored during the same term, the dismissal operates as a bar to any other appeal in the same cause. In the ejectment case, the appeal was dismissed for this neglect to file the transcript, and upon the order of dismissal the remittitur issued, the cause not having been restored. The judgment thereupon became final, not being afterwards open to review. It was, therefore, to all intents and purposes, within the meaning of the statute, affirmed.