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Downing v. Rademacher

136 Cal. 673 Court Department One. Decision date 1902-06-25 Docket L. A. No. 1272 English

Delivered by HARRISON, J.

Contents

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p. 673
[L. A. No. 1272.
Department One.
June 25, 1902.]
E. DOWNING, Plaintiff and Appellant, v. ALECK RADEMACHER, and T. M. OSMONT, Defendants and Respondents, and W. W. MIDDLECOFF, Defendant and Appellant.

Headnote

Judgment upon Cross-Complaint—Joint Appeal by Plaintiff and Defendant—Dismissal.—An appeal from a judgment rendered in favor of two. defendants upon their cross-complaint in an action to quiet title against the plaintiff and another defendant may be taken by the latter jointly, in like manner as if the action had been brought against them as defendants, by the cross-complainants as plaintiffs; and their joint notice and undertaking does not render their appeal subject to dismissal, on the ground that they are on opposite sides of the record as parties.
Id.—Form of Undertaking on Appeal—Construction—Practice.— The code does not require a separate undertaking on behalf of each appellant, nor does it require that the name of any payee shall be stated therein. The undertaking herein is to be construed as rendering the sureties liable to the respondents; and the undertaking being in the form which has been the settled practice for many years, this court will not disturb such practice.
Id.—Certificate as to Undertaking—Prima Facie Sufficiency—Burden of Proof.—A certificate attached to the transcript in which the clerk certifies that “a good and sufficient undertaking on appeal in due form was properly filed herein,” conforms with the requirements of the code, and is prima facie sufficient, and it is incumbent upon the respondents to show any incorrectness in the certificate.
MOTION to dismiss appeal from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge.
The facts are stated in the opinion of the court.
Louttit & Middlecoff, and J. W. Ahern, for Appellants.
T. M. Osmont, for Respondents.

The respondents have moved to dismiss the appeal herein upon the ground that the appellants—the plaintiff and one of the defendants—have given a joint notice of appeal, whereas, inasmuch as they are on opposite sides of the record, each appellant should have given a separate

p. 674
notice; that the undertaking on appeal is insufficient, in that it is joint on behalf of both appellants, instead of a separate undertaking on behalf of each; that no payee is named therein; and that it does not appear from the record that it was filed within the time required by law.

1. The action was brought by the plaintiff against the defendants to quiet his title to certain'mining property. Two of the defendants,—the respondents herein,—in addition to answering the complaint, filed a cross-complaint against the plaintiff and one of their co-defendants, upon which judgment was rendered in their favor and against the defendants in the cross-complaint, and the appeal is from that judgment. While the trial of the issues presented under this cross-complaint is in the action brought by the plaintiff against the several defendants, the judgment is in legal effect the same as if the cross-complainants had instituted an original action against the plaintiff and their co-defendant, and obtained judgment therein. The judgment is against the appellants herein, and the fact that they were on opposite sides of the record in the original complaint does not impair their right to unite in the appeal or to give a joint notice of appeal any more than if they had been defendants in an original action against them by the respondents.

2. In the undertaking filed herein the sureties “do hereby jointly and severally undertake and promise on the part of the appellants that the said appellants will pay all damages and costs which may be awarded against them on appeal or on a dismissal thereof, not to exceed $300.” The code does not require a separate undertaking on the part of each appellant, its provision being (Code Civ. Proc., sec. 941) that it must be executed “on the part of the appellant” by two sureties to the effect “that the appellant will pay” the damages and costs that may be awarded him on the appeal. By section 17 of the Code of Civil Procedure, “the single number includes the plural,” and there is the same reason for holding that the appellants may unite in the undertaking as in the notice of appeal. The omission of a payee in the undertaking is immaterial. The code does not require that it shall contain the name of the payee, and a proper construction of the undertaking herein renders the sureties liable thereon to the

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respondents. Aside from these considerations, as the undertaking in the present case is in the form which has been in use for many years, we would not feel justified in disturbing so long and well-settled a practice.

3. In his certificate attached to the transcript the clerk certifies that “a good and sufficient undertaking on appeal in due form was properly filed herein.” This complies with the requirements of the code (sec. 953); and is prima facie sufficient. (Meeker v. Hoffer, 57 Cal. 140 .) If the certificate was incorrect, it was incumbent upon the respondents to make that fact to appear.

The motion is denied.

Garoutte, J., and Van Dyke, J., concurred.

Cases cited

Statutes and regulations cited