and are desirous of appealing therefrom to the superior court of the county of Amador, and pending such appeal, claim a stay of proceedings and are desirous of staying the execution of the said judgment so rendered as aforesaid;

"Now, therefore, in consideration of the premises, of such appeal and of such stay of proceedings and execution, all as aforesaid, we, the undersigned American Surety Company of New York . . . as surety do hereby undertake and acknowledge ourselves bound in the sum of five hundred and thirtyfour dollars (being twice the amount of the said judgment including costs) and promise on the part of said appellant that the said appellant will pay the amount of the said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the said superior court. It cannot be said to be an unwarranted construction of the foregoing instrument to hold that the surety bound itself to answer for a judgment against appellant Bergevin and not against Bergevin & Company. At least, the undertaking is so uncertain in that respect that the court did not exceed its jurisdiction in dismissing the appeal as to the appellant company.

In Commercial Bank v. Wells, 5 Cal. App. 474, [90 Pac. 981], the appeal was from the judgment and from an order denying a new trial. As stated by the court: "The only undertaking filed was conditioned to 'pay all costs and damages which may be awarded on the appeal or on a dismissal thereof not exceeding $300.' It is not possible to determine which appeal is referred to in the undertaking. 'It is so ambiguous that it must be regarded as if none had been filed.' (People v. Center, 61 Cal. 191; Home & Loan Assn. v. Wil kins, 71 Cal. 626, [12 Pac. 799].)" This conclusion was reached notwithstanding that the time had elapsed within which one of the appeals should have been taken.

In McAulay v. Tahoe Ice Co., 3 Cal. App. 642, [86 Pac. 912], it was held, as stated in the syllabus, that "where the notice of appeal properly designated the supreme court as having sole jurisdiction. . . the undertaking on appeal should have conformed thereto; and where it misdescribed this court as the one to which the appeal was taken as 'the appellate court for the third district of the state of California' it was ineffectual for any purpose; and the appeal must be dis

missed," the court basing its decision on the familiar doctrine that the sureties may rely upon the strict terms of their obligation. (Brandt on Suretyship and Guaranty, sec. 106.)

It is apparent here that, according to the strict terms of the undertaking, the surety would not be liable for a judgment against one of the appellants. And indeed, on account of the uncertainty in said terms, it is at least doubtful whether the undertaking is sufficient as to either appellant.

In the case of Zane v. De Onativia, 135 Cal. 440, [67 Pac. 685], it is held that where an appeal is taken by only one party, and the undertaking thereon purports on its face to be given on appeal taken by several appellants, such undertaking is insufficient and the appeal will be dismissed. It is said: "In this case only the defendant Lillie gave notice of appeal, the undertaking in terms is security for the appeal of the defendants. The sureties undertake upon the part of the appellants (when there is but one appellant) that the appellants will pay all costs and damages which may be awarded against the defendants on said appeal when costs and damages could only be awarded against the one appealing defendant. Standing upon the strict letter of their contract, the sureties could never be liable for anything upon this under taking."

If that decision is right-and we do not question it-there can be no doubt that the court below was justified in dismissing the appeal of Bergevin & Company. The significance of the undertaking is to be determined from the language used and not by the application of section 17 of the Code of Civil Procedure in reference to the meaning of words used in the code.

We can see nothing in the cases cited by petitioners militating against the views herein expressed. Of these we notice Jones v. Superior Court, 151 Cal. 589, [91 Pac. 505], and Pacific Window Glass Co. v. Smith, 8 Cal. App. 762, [97 Pac. 898]. In the former it was simply held that the expression "all costs" used in the undertaking was broad enough to cover the costs on appeal. The court said: "It is quite evident that it was intended to be an undertaking on appeal as well as for a stay and the penal sum is more than twice the amount of the judgment and the hundred dollars in addition." It may be remarked that it might be plausibly contended here that there is no undertaking to pay the costs on appeal, as it

purports to be an undertaking for a stay, and the penal sum is only twice the amount of the judgment and does not include the $100 for costs on appeal, but we deem it unnecessary to decide that point, although it is determined in McConky v. Superior Court, 56 Cal. 83, that when there is an undertaking for a stay there must also be an undertaking for costs on appeal.

In Pacific Window Glass Co. v. Smith, supra, the pivotal question was, as stated by the court and conceded by counsel, the intent and purpose with which a certain deposit in lieu of a bond was made by the petitioners with the justice of the peace. It was properly held that it was clearly their purpose to guarantee the payment of the costs of appeal.

Petitioner contends also that the court below should have allowed a new undertaking to be filed, and that upon this application an order to that effect should be made. We are bound, however, by the statement of respondent that no application was made to file said undertaking until after the appeal was dismissed. This was manifestly too late. (Zane v. De Onativia, supra.) Section 954 of the Code of Civil Procedure makes provision for the filing of a sufficient undertaking in the supreme court or the district court of appeal before the hearing of the motion to dismiss where the undertaking already given is insufficient. There seems to be no similar provision in reference to appeals from the justice court, but it is at least too late for the superior court to allow an additional undertaking to be filed after the appeal is dismissed. The court would be without jurisdiction to make such an order. And if this application could subserve the purpose of a writ of mandate, this court would have no authority to direct the lower court to do something in excess of its jurisdiction.

We think it cannot be held that the superior court exceeded its jurisdiction in dismissing the said appeal, and the order to show cause is discharged and the writ denied.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 653. Second Appellate District.-November 2, 1909.]

JOSEPH BUCHER, Appellant, v. W. D. F. ALLEN, Respondent.

STATUTE OF FRAUDS-SALE OF PERSONAL PROPERTY-DELIVERY AND CONTINUED CHANGE OF POSSESSION-QUESTION OF FACT.-The question whether or not a sale of personal property was followed by an immediate delivery and an actual and continued change of possession, as required by section 3440 of the Civil Code, so as to protect the same against the creditors of the vendor, is a question of fact to be determined by the trial court. ID.-ATTACHMENT BY CREDITORS-CLAIM AND DELIVERY-SUPPORT OF FINDING CONFLICTING EVIDENCE.-Where the creditors of the vendor levied an attachment against the personal property sold, which was taken possession of by a constable, against whom the purchaser brought an action of claim and delivery, and notwithstanding conflicting evidence in such action, there was some evidence tending to show a continued possession by an agent of the vendor when the attachment was levied, it cannot be held upon appeal that a finding in such action against the purchaser and in favor of the constable that the sale was not accompanied by an immediate delivery and actual and continued change of possession was without support in the evidence.

APPEAL from a judgment of the Superior Court of San Bernardino County. Frank F. Oster, Judge.

The facts are stated in the opinion of the court.

C. C. Haskell, and F. A. Leonard, for Appellant.

Byron Waters, for Respondent.

ALLEN, P. J.-Appeal by plaintiff upon bill of exceptions from judgment rendered against him and in favor of defendant.

The case is this: On December 24, 1906, one Hicks and wife owned certain real property in the city of San Bernardino, California, upon which was a house used as a lodging-house. Hicks and wife sold the real property and the furniture and fixtures of the lodging-house to plaintiff, who paid the full consideration therefor. The lodging-house had been operated before the sale by the wife of Hicks, who was indebted to

parties in San Bernardino. These creditors instituted a suit against Mrs. Hicks, and, on December 27, 1906, levied an attachment upon the lodging-house, furniture and fixtures. This writ was executed by defendant, a constable, and the personal property on that date reduced to possession by him. In order to recover possession from defendant this action in claim and delivery was brought by plaintiff. The right of possession to the personal property hinges upon the validity of its sale as affecting creditors of Mrs. Hicks. The court finds that such sale was not accompanied by immediate delivery and followed by actual and continuous possession, as required by section 3440, Civil Code. This finding appellant attacks as having no support in the evidence.

An examination of the record discloses that plaintiff testified that he took possession of the personal property through one Von Boven, as his agent, on the 24th of December, while Mrs. Hicks testified: "I offered the keys on the 24th to Mr. Bucher, and he asked me to look after the house for him in his interest until I went out on the 29th; and on the 26th I was called to Los Angeles on business, and I handed the keys to Charles Von Boven in the presence of Mr. Waldon, and told him to take care of these rooms and take care of the house for Mr. Bucher. . . . I delivered the keys to Mr. Von Boven for the reason that Mr. Bucher told me that Von Boven was in his employ, and that I should deliver the keys to him if I went away from the house." Von Boven testified that when he was handed the keys by Mrs. Hicks she said to him, "I may be back to-morrow." The evidence as to the change of possession was conflicting. It was a question of fact for the trial court to determine. We cannot say that there is no evidence in support of the finding of the court. Our supreme court in Goldstein v. Nunan, 66 Cal. 544, [6 Pac. 451], has said that the employment by the vendee of one of the vendors after the sale tended to prove that there had been no actual change of possession. There was, then, evidence introduced which tended to show that the vendor continued in possession and the requirements of the section of the code above referred to were unsatisfied. Without reference to other testimony, which was to the effect that Von Boven disclaimed any agency on behalf of plaintiff and insisted that he was acting, while in charge of the property, for Mrs. Hicks, we think it cannot be said that the conclusion of the trial court is man