The record-union., 1899-06-28
The suREIlEs NOT LIABLE.
DECISION IN THE STARR DAM
AGE CASE.
Judge Hughes Reason for Denying
the Plaintiffs Demand Pend
ing Appeal.

$3.50
ing Appeal.
1uoge Hughes yesterday rendered. q
uecas1on In the case of Albert H.
starr against Lucas Kreuzberger and
Nicnoias Harvie holding that the
PLAINTIFFS motion for judgment
AGAINST the sureties on the first under
taxing ON appeal must be denied. The
decision follows in full:
In the Superior Court of the State
OF California in and for the County
of Sacramento.
Albert H. Starr VS.. Lucas Kreuzberg-
er and Nicholas Haryie. This is an
action for damages for personal IN
jury, in which the plaintiff recovered
Judgment for 81 eco and costs taxed
at $500 Defendants, within the
statutory time. served and filed their
notice of intention to move for new
trial. Thereafter plaintiff applied to
Inc Court for an order directing the
issuance of execution upon his judg-
ment, which order was. duly given by
the Court, and provided that execution
should issue unless. the defendants filed
a stay bond as provided by law.
Whereupon, the defendants gave
notice of an appeal from said judg-
ment, and ON April 4, 1898, filed the
usual three hundred- dollar undertaking
on appeal, and also an undertaking in
double the amount of plaintiffs judg-
ment, conditioned as provided by Sec
ton OIL of the Code of Civil Proceed
ure. That is to say, the undertaking
provided that the sureties would pay
the amount of plaintiffs judgment in
the event that defendants appeal be
dismissed, or the judgment affirmed
by the Supreme Court, within thirty
days after the filing of the remittitur
from that Court; ard also contained
the further covenant that judgment
may be entered in said action on mo-
ton of respondent and without notice
to US or either of us, in his favor,
against the undersigned sureties for
such amount, together with the in
terest that may be due thereon. AID
the damages and costs which may be
awarded against the appellants upon
the appeal" This appeal was dis
missed in the Supreme Court. and, more
than thirty days after the remittitur
had been filed with the Clerk of this
L, \
for Judgment against the sureties on
said undertaking, in pursuance OF the
covenant contained therein, and which
is above quoted.
After appealing from the Judgment
and within the time allowed by law, the.
defendants prepared and caused to be
settled theft statement on motion Tor
a new trial, and thereafter presented
toll IN =
Court. which was by the Court denied
Whereupon, the defendants took a sec
end appeal to the Supreme Court from
the order of this Court denying their
motion for new trial Upon this sec
ond appeal the usual appeal bond of
$500, and also the stay bond in double
the amount. of the judgment, were duly
executed and filed with the Clerk of
this Court.
The question presented for determin-
alton at this time is whether or not the
plaintiff is entitled to Judgment
against the sureties on the undertaking
filed on the first appeal, or does me
undertaking filed on the second appear
stay all proceedings in this Court I'M
til the determination of that appeal by
the Supreme Court?
Rule. % of the Superior Court pro-
yideS that "a notice of intention TO
move for new trial stays execution
unless the Court shall otherwise direct. "
This rule, however, is not applicable TO
the case at bar, because an order has
been made, directing that execution Is
sue unless a stay bond is filed. The de-
PENDANTS contend, however, that the
undertaking on the second appeal eff
fectually stays the execution or any
proceedings to that end.
The Supreme Court of this State, in
the case of Sharon VS.. Sharon fI9 Cal,
65D. has said: THE law of this State
permits two appeals in the same case,
one from the judgment and the other
from the order denying a new trial.
Both of these appeals have direct eff
feet on the Judgment, and. if success
full. may Yacate it entirely or modify
it. as the Court may determine. These
appeals may both be prosecuted and be
pending in this Court at the same time,
as was the. case here, until the appeal
from the Judgment was disposed OF.
The fact that this Court has declared
rule of law in deciding the appeal nrst
reached for decision, and upon which
no action has or can be taken until
the second appeal is also disposed OF,
cannot. by reason of the rule invoked
by the respondent, prevent the Court
from fully investigating and deciding
the second appeal to the extent or mod
flying or wholly changing it's former
decision, if it be satisfied that an err
-or has been committed. The case must
be regarded as within the control OF
this Court until both appeals are de-
termined.''
The same Court said, in deciding the
case of Fulton We Hanna (40.Cal, $50
although an appeal from an order
denying motion for new trial is in
a Indifferent and distinct line of proceed
ing from direct appeal from judg-
ment, still reversal on appeal from
the order denying a motion for new
trial and remanding the case for re-
trial. as effectuaHy vacates the judg-
ment as a reversal of the judgment
upon a direct appeal therefrom; and
when a full bond is given on appeal
from such order. as provided in section