Nolan

This is an appeal from a judgment in favor of plaintiff in action on an undertaking given to stay execution of a judgment of the justice’s court rendered in an action in which respondent was plaintiff. The record before us consists of the judgment-roll and a bill of exceptions.

The first point made in the brief of appellant is that the t complaint does not state a cause of action, for the reason that the judgment of the justice’s court is not sufficiently alleged, in that it is simply alleged that “judgment was rendered,” etc., instead of “judgment was duly made and given,” etc. There is no merit in this point. This is not an action on the judgment, where the judgment must be pleaded as the foundation of the plaintiff’s cause of action, but is an action on a stay bond given on an appeal from a judgment, and the rendition of the judgment is pleaded only by way of inducement to the giving of the bond. This section of the code (Code Civ. Proc., sec. 974) which authorizes the appeal contains these words: “Any party dissatisfied with a judgment rendered in a civil action in a police or justice’s court may appeal therefrom to the superior court of the county at any time within thirty…