Pieper v. Peers

Fitzgerald, J. This was an action against the defendants as sureties upon an undertaking given to slay execution of judgment pending appeal. The defendants demurred to the complaint on the ground of insufficiency, and the demurrer was properly overruled. They then answered, and plaintiff had judgment, from which the defendants appeal upon the judgment-roll alone.

It is substantially alleged, and the court finds, that one Marie Albert obtained a judgment in a justice’s court against one Lucas for the delivery of a certain lot of hay, or the value thereof in case delivery cannot be had; that Lucas thereafter filed and served notice of appeal therefrom to the superior court, and that thereupon the defendants executed and filed in the justice’s court their written undertaking and justification on appeal, conditioned in pursuance of the provisions of section 978 of the Code of Civil Procedure; that the appeal was thereafter dismissed by the superior court; that no part of the hay has ever been delivered, nor any part of its value or the costs ever been paid pursuant to the judgment, and that the judgment was duly assigned to plaintiff.

It was not necessary to the sufficiency of the complaint to allege the issuance and return of the execution unsatisfied (Nickerson v. Chatterton, 7 Cal. 475; Tissot v. Darling, 9 Cal. 285); or that notice of the dismissal of the appeal by the superior court was given (Murdock v. Brooks, 38 Cal. 604); or that demand was made prior to the commencement of the action (Coburn v. Brooks, 78 Cal. 443; Murdock v. Brooks, 38 Cal. 604); or that a delivery of the property could not be had; or that any order was made by the superior court which the appellant in that case failed or refused to obey, unless a recovery is sought upon such order, when made, which is not the case [44]here, for the obvious reason that the undertaking on appeal, which is the basis of this action, is an independent and absolute contract on the part of the defendants, by the terms of which they expressly promised and agreed, in consideration of a stay of the execution of the judgment appealed from, “that the appellant will pay the amount of the judgment so appealed from and all costs, and will obey the order of the court made therein if the appeal be withdrawn or dismissed.”

In Moffat v. Greenwalt, 90 Cal. 368, which was an action upon an undertaking on appeal to a superior court, it was said by Justice Harrison: “By their undertaking the defendants promised and agreed that ‘if the appeal be withdrawn or dismissed/ the appellant would pay the amount of the judgment so appealed from. This was an original and independent agreement on their part- (Tissot v. Darling, 9 Cal. 278), and in legal effect was entered into by them with the1 plaintiff. By virtue of the provisions of section 979 of the Code of Civil Procedure, upon the filing of the undertaking staying proceedings, all proceedings under the execution are to be stayed.....The consideration recited in the undertaking was the ‘ staying of the execution of the judgment appealed from/ and as this undertaking was filed, it became an executed obligation on their part, and whenever the contingency upon which the obligation was to depend arose, tlieir liability became fixed. This liability could not thereafter be defeated by an act or omission on their part, or on the part of their principal. Their agreement to be bound in case the appeal should be dismissed extended as well to a dismissal resulting from their failure to justify as to a dismissal resulting from a failure on the part of their principal to prosecute the appeal.....We do not think that it was competent for the defendants, after they had executed the undertaking, to avoid their liability thereon by any act of their own or any failure to comply with a provision which is intended solely for the protection of the respondent.”