Bank of Escondido v. Superior Court of San Diego

Citations

• 106 Cal. 43
• 39 P. 211
• 1895 Cal. LEXIS 566

Syllabus

<p>Appeal ^Justification of Sureties — Exception to Sufficiency — Waiver.—The justification of the sureties upon an appeal bond, by their oath attached to the bond, establishes a prima facie justification, which is sufficient, unless overcome at the instance of the party excepting and by the examination of the sureties by him; and if he fails to appear at the time fixed for their justification, after exception taken, he waives the benefit of his exception.</p> <p>Id.—Withdrawal of Surety—Presence at Justification.—The contention that one of the sureties on the appeal bond withdrew from the undertaking, and that respondent’s failure to procure a new surety renders the appeal void, cannot be sustained where such surety was actually present at the time appointed for the justification, for the purpose of justification, and the party excepting to his sufficiency failed to attend.</p> <p>Id.—Appeal from Justice’s Court — Certiorari — Conflicting Evidence.—Where the question whether a surety was present for the purpose of justification upon a bond upon appeal from the justice’s court, the sufficiency of the sureties upon which was excepted to, was a fact presented to the superior court, and determined in favor of the sufficiency of the undertaking upon conflicting evidence, that determination is not subject to review in the supreme court upon certiorari.</p>