Dering v. Metcale

Headnote

The provision of the Civil Code (§ 1308) authorizing an appellate court to require the appellant to file a new undertaking, in case of the insolvency of one of the sureties, is not imperative ; if the remaining surety is solvent and abundantly able to satisfy the judgment, or if the judgment is otherwise well secured, and the appeal is likely to be heard and disposed of without delay, the court may, in its discretion, refuse the order.

This was a motion, under section 1308 of the Civil Code, to require the appellant to file a new undertaking, on the ground that one of the sureties was insolvent; the judgment was about $2,000. It appeared by the opposing affidavits that the other surety was worth at least $50,000 ; that the judgment was well secured upon the real estate of the appellant; that the cause was upon the calendar and ready for argument, and would probably be reached and disposed of in less than four months. The appellant also deposed that he could not furnish a new undertaking. The court held as above, and that the case was one where the order ought not to be granted.