Moffat v. Greenwalt

Harrison, J. — This was an action against the defendants as sureties upon an undertaking given on an appeal from a judgment rendered in favor of the plaintiff in the justice’s court of Los Angeles City township. The judgment was rendered in the justice’s court, June 3, 1889. On the 18th of June the defendant in that case served and filed a notice of appeal therefrom, and on the 21st of June an undertaking on appeal executed by the defendants herein was filed in the justice’s court. June 22d, the plaintiff excepted to the sufficiency of the sureties, and they failing to justify, and no other undertaking being filed, the papers in the case were not transmitted to the superior court by the justice; and on the 7th of November, 1889, the superior court, upon the motion of the plaintiff, dismissed the appeal.

1. The allegation in the complaint that the defendant in the action in the justice’s court “ appealed to the superior court of said county and state from said judgment ” is a sufficient averment of that fact. The “ appeal ” is the ultimate fact to be alleged. The several acts performed in. taking it are but probative facts, and their allegation in the complaint would be obnoxious to the charge of alleging evidence instead of facts. The provisions of section 456 of the Code of Civil Procedure have no application to an averment of this nature. An appeal is not in any sense a “judgment or other determination.”

The objection, urged in support of the demurrer, that the averment in the complaint that the “appeal was dismissed by the superior court ” does not sufficiently comply with the requirements of section 456 of the Code [370]of Civil Procedure, if it had any merit, was cured by the allegation in the answer, that the court made an order that the appeal be dismissed, “which said judgment was du'y made, duly rendered, and duly given.”

2. It is contended by the appellants that upon their failure to appear and justify after the plaintiff had excepted to their sufficiency, under the provisions of section 978 of the Code of Civil Procedure, “the appeal must be regarded as if no such undertaking had been given”; and they further contend that inasmuch as if no undertaking had been given the appeal was “not effectual for any purpose,” there was no appeal which could be dismissed; consequently their liability on the undertaking never attached.

At the common law, when special bail were excepted to, they were considered as no bail, unless they justified; and if they did not justify, the court would, upon their application, order an exoneretur to be entered upon the bail-piece; but until this was done, they were held liable. (1 Tidd’s Practice, 258.) In Bramwell v. Farmer, 1 Taunt. 427, the court affirmed a judgment against the bail under these circumstances, saying: “The bail had nothing to do with the exception or the waiver of it. They entered into a recognizance, and thereby incurred the obligation to perform it.” In New York, under a provision similar to that in our code, it is held that the sureties upon an undertaking on appeal are liable thereon, although they have failed to justify after an exception has been taken to their sufficiency. (Manning v. Gould, 47 N. Y. Super. Ct. 387; McSpedon v. Baker, 5 Daly, 30.)