SEC. 47. Where in a action on an appeal bond, conditioned to pay the judgment appealed from if the same should be affirmed by the appellate court, it appeared that the judgment appealed from was reversed, with directions to enter a different judgment: Held, that the conditions of such bond were not broken, and that no action would lie thereon. Chase vs. Ries et al., 10 Cal. 517.

Justification of Sureties.

SEC. 48. The undertaking shall be accompanied by the affidavits of the sureties, that they are residents of the county, and are each worth the amount specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; or the bond shall be executed by a sufficient number of sureties who can justify, in the aggregate, to an amount equal to double the amount specified in the bond, or a deposit of the amount of the judgment, including all costs appealed from, or of the value of the property, including all costs in actions for the recovery of specific personal property, with the justice. And such deposit shall be equivalent to the filing of the undertaking in this act mentioned; and in such cases the justice shall transmit the money to the clerk of the county court, to be by him paid out on the order of the court. The adverse party may, however, except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal shall be regarded as if no such undertaking had been given. Pr. Act, 628; Gen. Laws, 5559.

SEC. 49. Where a party gave notice of the justification of the sureties on an undertaking before the clerk of the court, on a day named, between the hours of ten A.M. and five P.M. of that day, and the sureties appeared upon such notice soon after ten of that day: Held, that the clerk acted properly in refusing to take their justification, the opposite party being absent until the last hour stated in the notice. The defendant should have designated an hour at which he

would have been present with his sureties, and he could not by his failure to do so compel the attendance of the opposite party the entire day in waiting for his appearance. Lower vs. Knox, 10 Cal. 480, 481.

SEC. 50. A motion is made in this case to dismiss the appeal. The notice of appeal was filed on the eighteenth of April, 1860. An undertaking was filed on the same day, and on the twentieth of April a notice was served excepting to the sufficiency of the sureties. A notice was thereupon given that on the twenty-fifth of the same month the sureties would justify before the county judge of Sacramento county. Certain orders were afterwards made extending the time of justification to the first of May. It was necessary that the sureties should justify within five days after the notice of exception, and the failure to do so rendered the appeal a nullity. The statute provides that upon a failure to justify within the time limited, the appeal shall be regarded as if no undertaking had been given. The orders extending the time were in contravention of this provision, and were therefore inoperative. The statute is peremptory in its terms, and the consequence of a violation is that the party loses the benefit of his appeal. See Elliott vs. Chapman and Shaw vs. Randall (April T. 1860). "It has been repeatedly held," says Sedgwick, "that courts have no dispensing power, even in matters of practice, when the legislature has spoken. Thus, where a statute declares that a judge at chambers may direct a new trial, if application be made within ten days after judgment, it has been said that he can no more enlarge the time than he can legislate in any other matter. When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice. So, where an appeal to be valid, must be made within ten days, it is void if taken on the eleventh." Sedg. on Con. 322. It follows that the motion to dismiss must be granted, but the appellant is not precluded from the right to prosecute another appeal. 17 Cal. 122.

SEC. 51. If an execution be issued on the filing of the undertaking staying all proceedings, the justice shall, by order, direct the officer to stay all proceedings on the same.

Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same. Pr. Act, 629; Gen. Laws, 5560. SEC. 52. The following is a form of notice of appeal:

Notice of Appeal-Civil Cases-Form No.

In the justice's court of ... township, in the

plaintiff, against

defendant.

state of......

county of

.....

You will please take notice, that the defendant in the above entitled action hereby appeals to the county court of. ...., county of ......, from fhe judgment therein made and entered in the said justice's court, on the .... day of .... A.D. 18.., in favor of said plaintiff, and against said defendant, and from the whole of said judgment. This appeal is taken on questions of both law and fact [or, "on questions of law"].

Subscribed and sworn to before me, this .... day of

Justice of the peace township.

Appeal Bond.

In the justice's court of the ...... township, in the county of ......, state

Know all men by these

and

.... and ....

in the sum of

sureties, are held and firmly bound unto

dollars, lawful money of the United States of ......, his executors, administrators

America, to be paid to the said or assigns; for which payment, well and truly to be made, we bind ourselves, our, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.

Sealed with our seals and dated this .... day of ...... A.D. 18...

The condition of the above undertaking is such, that whereas the said obtained a judgment against the said

before

of

esq., justice of the peace of the state of ......, on the day of dollars damages, and

above bounden ..............

A.D. 18.., for the sum

dollars costs; and whereas, the

is desirous of appealing from the decision of ...., and a stay of

said justice to the county court of the said county of proceedings is claimed. Now, if the above bounden ... ..... shall well and truly pay, or cause to be paid, the amount of the said judgment and all costs, and obey any order the said county court may make therein, if the said appeal be withdrawn or dismissed, or pay the amount of any judgment and all costs that may be recovered against the said appellant, in the said county court, and obey any order the said court may make therein, then this obligation to be null and void; otherwise to remain in full force and virtue.

......

[L.S.] [L.S.] [L.S.]

State of
City and County of

and

Justification of Sureties.

88.

the sureties in the within undertaking, being duly sworn, say, each for himself, and not one for the other, that he is a resident of said city and county of ......, and that he is a [house or freeholder] within the same, and is worth the amount specified in the within undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution.

Subscribed and sworn to before me, this .... day of

A.D. 18..

Defendant's Appearance and Notice thereof.

SECTION 1. The defendant may appear in the action by demurrer or answer at any time after service of summons upon him, and shall notify the plaintiff, by written notice, of such appearance. Stats. 1867-1868, 552.

SEC. 2. A party ought not to be allowed the benefit of any proceeding, unless he also assumes the responsibility of it. His appearance for one purpose is a good appearance to the action. 4 Cal. 306.

SEC. 3. But an appearance merely for the purpose of asking an adjournment is not an appearance to the action, and where a judgment is rendered against the defendant in such case, he may bring a certiorari, as upon a judgment rendered in his absence. 2 Harr. 454.

Form of Notice.

SEC. 4. The following is a form of notice:

In the justice's court in and for .... township, county of state of

against

The plaintiff in the above entitled cause will hereby take notice that I have appeared in said action by answer [or, "demurrer"], and will be ready for trial on the day of

....

18...

.....

By his att'y,

Defendant's Default.

SEC. 5. If any of the defendants shall fail to answer or appear in the action within the time prescribed in the summons, such default shall be entered by the justice in his docket. Stats. 1867-1868, 552.

Justice's Entry of Default.

SEC. 6. The following is a form of justice's entry of default:

against

In this action the defendant,

having been regularly served with process, and having failed to appear and answer the plaintiff's complaint on file herein, and the time allowed by law for answering having expired, the default of said defendant, in the premises is herely duly entered

according to law.

.....