Chase v. Beraud — 29 Cal. 138

Majority

p. 138

JAMES B. CHASE v. LOUIS BERAUD and JEAN GARRAUD.

Headnote

Sureties on Appeal Bond.—Where an appeal is dismissed on motion of respondent, based on written consent of the appellant, the dismissal operates as an affirmance of the judgment, and charges the sureties on the undertaking on appeal.

Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

Plaintiff recovered judgment, and defendants, who were the sureties on the undertaking on appeal, appealed.

The other facts are stated in the opinion of the Court.

Byrne & Freelon, for Appellants.

James Mee, for Respondent.

The only question involved in this appeal relates to the effect of a judgment of this Court dismissing an appeal upon the liability of the sureties upon the undertaking on appeal, it being claimed that they do not become charged by such, a judgment, and that such a result follows only from a formal judgment of affirmance in whole or in part.

The appeal in question, as appears from the record, was dismissed upon the motion of respondent, based upon the written consent of the attorneys for the appellant. Thus made, the judgment of dismissal was a final determination of the appeal by this Court, and the judgment of the Court below was no longer open for review. Such being the case, the question as to its effect upon the liability of the sureties upon the undertaking is not an open question in this State. Such a dismissal operates as an affirmance of the judgment and suffices to charge the sureties. (Osborn v. Hendrickson, 6 Cal. 175 ; Karth v. Light, 15 Cal. 324 ; Chamberlain v.

p. 139

Reed, 16 Cal. 207 ; Ellis v. Hull, 23 Cal. 160 ; Rowland v. Kreyenhagen, 24 Cal. 52 .)

Judgment affirmed.

Mr. Justice Rhodes expressed no opinion.

Cases cited

Osborn v. Hendrickson 6 Cal. 175 Cal. p. 138
Karth v. Light 15 Cal. 324 Cal. p. 138
Chamberlin v. Reed 16 Cal. 207 Cal. p. 139
Ellis v. Hull 23 Cal. 160 Cal. p. 139
Rowland v. Kreyenhagen 24 Cal. 52 Cal. p. 139