Patterson

An undertaking releasing an attachment levied by the respondent having been furnished by the appellant, the instant suit was based thereon, where the surety affirmatively alleged by answer that “immediately after the issuance of the execution in said action, said [defendant] duly filed and served' therein its notice of appeal in said action and filed the undertaking therein within the time prescribed by law by good and sufficient surety in double the amount named in said judgment conditioned as prescribed by law, staying execution of said judgment pending and undetermined and said judgment and execution thereof has been duly stayed pending the determination of said appeal”.

Judgment in favor of the plaintiff in this action was rendered upon the pleadings, and the respondent herein contends in support of such judgment that the matters so alleged were insufficient to preclude recovery of the amount of the first judgment, notwithstanding the pendency of the appeal.

Sections 942 and 946, respectively, of the Code of Civil Procedure, provide, in part:

The complaint alleged that execution issued; and than on the following day the same was returned unsatisfied. As alleged by the…