Sharp v. Miller

McKee, J.: It appears by the pleadings in this case, that on August 13th, 1875, a judgment for the sum of $300 was recovered by the respondent, in the case against one C. L. Morris, in the Third District Court of the City and County of San Francisco. Morris appealed from the judgment to the Supreme Court, and to render his appeal effectual, the appellants in this case, as his sureties, entered into an appeal bond, by which they undertook, “ that if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the appellant do not make such payment within thirty days after the filing of the remittitur from the Supreme Court in the Court from which the appeal is taken, judgment may be entered, on motion of respondent, in his favor against the sureties for such amount, together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellant upon the appeal.”

The judgment was affirmed by the Supreme Court January [41628]th, 1877; and October 27th, 1879, the respondent commenced the action out of which this case arises, to recover from the sureties the amount of said judgment and interest thereon from the date of its rendition, which, he alleged in his complaint, he had demanded from them, but they refused to pay.

Answer of the defendants admits that the plaintiff had, February 28th, 1877, demanded $331.50, as the amount of the principal and interest then due upon said judgment, and that they complied with the demand by tendering, in their own behalf and in behalf of their principal, the said sum of money “ in legal tender notes—the lawful money of the United States —in satisfaction- of the judgment and interest then due, but the plaintiff refused to receive and accept the same, on the ground that the tender was not made in gold coin of the United States.” Answer also sets up the defense of a former adjudication.

Upon the issues made by the complaint and answer, the Court below found that the defendants had not tendered the amount of the judgment; that the plaintiff had never refused to accept any tender or offer of the money demanded, and that the cause of action had not been formerly adjudicated.