Yates

This is a proceeding instituted by the county of Santa Barbara to condemn a right of way for a public road. Mary M. Yates, one of the defendants in the proceeding, appeals upon the judgment-roll accompanied by a bill of exceptions from the judgment of condemnation. The sole question presented for consideration is the alleged insufficiency of the bond which, under the provisions of section 2683, Political Code, is required to accompany the petition for the opening of the road. This section provides that "the petitioners must accompany the petition with a good and sufficient bond, to be approved by the board of supervisors, in double the amount of the probable cost of the viewing and laying out or altering of any road, conditioned that the bondsmen will pay all the costs of viewing and surveying in case the prayer is not granted." The bond presented with the petition was conditioned that the bondsmen "will pay all the costs of viewing and surveying in case the prayer of said petition is not granted, and the said road finally not opened. " It is contended that the insertion in the bond of the words italicized renders the bond void, and that the defect appearing in the bond itself,…

The petition for an order transferring this cause to the supreme court for a rehearing is denied. This order is not to be understood as an approval of that part of the opinion of the district court of appeal holding that the alleged defect in the bond accompanying the road petition cannot be questioned collaterally. We consider the bond sufficient for the reasons stated in the last paragraph of the opinion of the district court of appeal. Hence the question whether a material defect therein would make the proceeding void on the face of the record is not involved, and the part of the opinion relating to collateral attack is unnecessary to the decision. *Page 48