Osborn v. Hendrickson , 6 Cal. 175 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

This was an action in the Court below, upon an appeal bond, to recover rent accruing pending the appeal. Some two months after the judgment was recovered in the magistrate’s Court, and pending the appeal to the County Court, the plaintiff transferred the judgment to a third party, and sold the ¡premises in controversy to the defendants. The appeal was afterwards withdrawn or dismissed by an agreement between the plaintiff and defendants, without having been called to a final hearing. Upon this state of facts, it is clear, that the plaintiff is not entitled to recover upon the bond, and his remedy (if he have any) is against Hendrickson for use and occupation.

The obligation of the sureties was to pay all costs, damages and rents accruing, pending the appeal, and to abide the order of the Court therein. In other words, they undertook to become liable for the defendant upon a confirmation of the judgment in the appellate Court. A withdrawal of an appeal, and settlement of the suit, by consent of plaintiff and defendant, is not an affirmance of the judgment of the Court below.

It is true that the dismissal of the cause by the appellant, or a judgment of dismissal, for want of prosecution, would not release the bail or sureties, for this would he a fraud on the respondent; but a voluntary withdrawal of the appeal by both parties, and an adjustment of the controversy, terminates the suit, and the bond falls with it.

Judgment affirmed.