McCallion v. Hibernia Savings & Loan Society

Hayne, C. — This was a motion by plaintiffs for judgment against the sureties on an undertaking on appeal. The motion was denied, and the plaintiffs appeal.

The action related to the right to a deposit in the Hibernia Bank. The bank paid the money into court, and other parties were substituted as defendants. The plaintiffs recovered a judgment, and the substituted defendants appealed from such judgment, and from an order denying their motion for a new trial. In order to effect a stay of execution, the substituted defendants gave (in addition to the three hundred dollars undertaking) an undertaking in double the amount of the judgment, which undertakings were in the same instrument. The promise of the sureties set forth in the stay undertaking was as follows: —

“That if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellants will pay to the plaintiffs the amount directed to be paid by the said judgment, or the part of said 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 appellants upon the appeal, and that if the appellants do not make such payment within thirty (SO) 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 the respondents in their favor against the undersigned sureties,” etc.

Under this agreement we think it clear, in the first place, that the stay undertaking related to the appeal from the judgment, and not to the appeal from the order on motion for new trial. It is not doubted that a stay undertaking can be so drawn as to effect a stay on appeal from an order denying a new trial. (See Fulton v. Hanna, 40 Cal. 278.) But the undertaking here was not so drawn. Its condition was that “if the said judgment appealed from, or any part thereof, be affirmed, [573]or the appeal be dismissed, the appellants will pay,” etc. And it is therefore clear that before the liability of the sureties upon the stay undertaking became fixed, the appeal from the judgment must have been disposed of, either by affirmance or dismissal. A disposition of the appeal from the order alone was not sufficient.

In the next place the sureties, by the express provision of their contract, were to become liable to a proceeding of this kind upon the stay undertaking only in case of non-payment by the principals “ within thirty days after the filing of the remittitur from the supreme court.” And this evidently refers to the remittitur upon the appeal from the judgment, which,-as we have seen, is the appeal to which the stay undertaking relates. Consequently the sureties were not in default until thirty days after the filing of the remittitur upon the appeal from the judgment. And this being so, it was necessary for the moving parties to show that thirty days had elapsed since the filing of the remittitur on that appeal. The remittitur -which they introduced in evidence related to the appeal from the order only. Its language is, that “the order of the superior court . . . . be and the same is hereby affirmed.” It says nothing about the appeal from the judgment. And if the certificate of the clerk of the supreme court, introduced in evidence in rebuttal, be deemed to be a remittitur, it does not help the plaintiffs, because it was filed after the notice of motion was given, and only four days before the hearing and the order denying the motion.