[S. F. No. 1225.

Department One.

February 15, 1900.]

#### LAURA L. HAWLEY, Respondent, v. GRAY BROTHERS ARTIFICIAL STONE PAVING COMPANY, Defendant. H. N. GRAY and A. E. BUCKMAN, Appellants.

Appeal—Bond to Stay Execution—Judgment against Sureties — Procedure in Original Action.—The entry of judgment against the sureties upon a bond to stay execution pending an appeal is not a special proceeding within the meaning of section 23 of the Code of Civil Procedure, but Is part of the procedure in the original action authorized by section 942 of the Code of Civil Procedure, and is in sequence of the judgment rendered therein against the appellant.

Id.—Stipulation of Sureties—Parties to Action.—Under the provisions of the code, the sureties upon the appeal bond stipulate that upon the affirmance of the judgment appealed from, if the appellant does not pay the same within thirty days after the filing of the *remittitur,*judgment may be entered against them for the amount of said judgment, with the interest then due thereon; and they thereby make themselves parties to the original action, and the proceedings against them are taken therein.

Id.—Premature Judgment—Effect of Reversal.—The reversal of a premature judgment entered against the sureties less than *561thirty days after the filing of the *remittitur*affirming the judgment leaves the parties in the same position held by them before it was rendered. It does not affect or impair the obligation of the sureties upon their undertaking, which is the same as if no judgment had been rendered against them; and the plaintiff is still entitled to enforce that obligation by a proper motion for judgment against them.

Id.—I’besumption—Request of Appellants fob Vacation of Judgment.—Upon appeal from a judgment properly entered against- the sureties, it will be presumed, if necessary, that the former premature judgment reversed upon appeal was vacated at the request of the appellants.

APPEAL from a judgment of the Superior Court of the City and County of. San Francisco. James M. Troutt, Judge.

The facts are stated in the opinion of the court.

Fisher Ames, for Appellants.

Olney & Olney, for Respondent.

HARRISON, J.

The respondent recovered a money judgment against the Gray Brothers Artificial Stone Paving Company, from which the defendant therein appealed to the supreme court, and the appellants herein, as sureties for said appellant, executed an undertaking on appeal sufficient in form and amount to stay the enforcement of the judgment. The judgment appealed from was affirmed, and a *remittitur*from this court was filed in the superior court June 7, 1897. Upon the same day, that court, upon motion of the plaintiff, entered judgment against the sureties upon their undertaking. From this judgment the sureties appealed, and, upon the confession of the respondent therein that the judgment appealed from was prematurely entered, this court reversed the judgment and remanded the cause. Thereafter the superior court, upon the motion of the plaintiff, ordered judgment to be entered against the appellants herein—the sureties on the original appeal—and from the judgment thus entered they have appealed.

The entry of judgment against the sureties upon an appeal bond is not a special proceeding within the definition of section *23*of the Code of Civil Procedure, hut is a part of the procedure in the original action authorized by section 9-12 of the Code of Civil Procedure, and is in sequence of the judgment rendered *562therein, against appellant. Under the provision of this section the sureties stipulate that upon the affirmance of the judgment appealed from, if the appellant does not pay the same “within thirty days after the filing of the remittitur,” judgment may be entered against them for the amount of said judgment, with the interest that may then be due thereon. They thus make themselves parties to the original action and the proceedings against them are all taken in that action.

By the terms of their undertaking the appellants herein did not become liable to the plaintiff until the expiration of thirty days after the *remittitur*upon the affirmance of the judgment had been filed in the superior court. That court was not authorized, therefore, to render judgment against them upon the same day that the *remittitur*was filed, and the judgment thus entered was properly reversed. The reversal of that judgment had the effect to annul the action of the superior court and to leave the parties in the same position that they held before it was rendered. Such reversal did not affect the obligation of the sureties upon their undertaking, but their liability thereon was the same as if no judgment had been rendered against them. The plaintiff was still entitled to enforce this liability, and the court was authorized to render judgment therefor against them.

The judgment appealed from is regular in form, and upon its face purports to have been rendered upon the liability incurred by the appellants upon their undertaking in the former appeal. Instead of being impaired by the rendition of the former judgment, it would, if necessary, be presumed that the former judgment was vacated at the request of the appellants. *(Paige v. Roeding,*96 Cal. 388; *Von Schmidt v. Von Schmidt,*104 Cal. 547.)

The judgment is affirmed.

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