Pieper v. Peers

Citations

• 98 Cal. 42
• 32 P. 700
• 1893 Cal. LEXIS 858

Syllabus

<p>Appeal—Bond to Stay Execution—Claim and Delivery—Effect of Dismissal — Liability of Sureties—Defense to Action upon Bond.—An undertaking upon appeal from an alternative judgment, in an action of claim and delivery, to stay execution of the judgment, by the terms of which the sureties promise and agree “ 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of the judgment so appealed from, and all costs, and will obey the order of the court made therein if the appeal be withdrawn or dismissed,” is an independent and absolute contract on the part of the sureties, the liability upon which could not be defeated by any act or omission on their part, or on the part of their principal; and upon a dismissal of the appeal they become liable for the amount of the judgment appealed from, and all costs, and to discharge themselves from such liability in an action upon their undertaking, they must show as a matter of defense that the judgment has been satisfied either by a return of the property, or by payment of the amount of the judgment and costs; and upon their failure to make such showing, judgment is properly rendered against them for such amount.</p> <p>Id.—Pleading—Complaint on Bond—Unnecessary Averments. —In an action against the sureties upon such undertaking, it is not necessary to the sufficiency of the complaint to allege the issuance and return of the execution unsatisfied; or that notice of the dismissal of the appeal was given; or that demand was made prior to the commencement of the action; or that a delivery of the property could not be had; or that any order was made by the appellate court which the appellant failed or refused to obey.</p>