Dobbins v. Dollarhide

Citations

• 15 Cal. 374
• 1860 Cal. LEXIS 129

Syllabus

<p>An appeal will not be dismissed on the ground of insufficiency in the justification of the sureties on the undertaking, where the undertaking was both to render the appeal effectual and to stay execution, and the justification was sufficient for the former purpose.</p> <p>Where the examination of the sureties does not disclose sufficient property to make the undertaking operate as a stay, but does disclose sufficient to render the appeal effectual, respondent’s remedy is by motion in the Court below for leave to proceed on the judgment, notwithstanding the undertaking, and not by motion in the Supreme Court to dismiss the appeal.</p> <p>The statute requires the places of residence and occupation of the sureties to be stated in an undertaking on appeal, only when a stay of execution upon a judgment directing the payment of money is sought.</p> <p>An undertaking, without such statement, will render the appeal effectual, and as to the operation of such an undertaking as a stay, this case requires no decision. The statement containing no specification of the grounds of appeal, and the appellant not availing himself of the privilege accorded in Barrett v. Tewksbury, (ante) of annexing to his statement those grounds nunc pro tunc, this Court will not look into the testimony to ascertain errors. The case must stand on the judgment roll.</p>