Poncino

Petition for a writ of supersedeas.

The record shows that a certain judgment was obtained by plaintiff against defendant, petitioner herein, for the sum of $2,500. The action in which such judgment was rendered was one brought on an accident and health insurance policy.

Defendant moved for a new trial, which motion was denied on the fourth day of April, 1929, and thereafter it perfected an appeal to this court. For the purpose of staying-execution on said judgment, appellant, on April 8, 1929, filed a surety bond in the sum of $5,000. Respondent thereafter on April 12, 1929, filed notice that she excepted to the sufficiency thereof. On April 15, 1929, appellant served notice on respondent’s attorney that the surety on said bond would justify on the following morning at 10 o’clock, said notice being served in San Francisco, and the place set for justification being fixed at Oakland. Respondent’s attorney deeming the notice insufficient as to time did not attend. Appellant’s attorney did not discover his mistake concerning this notice until the second day of May, 1929, when he was served with a motion for execution to issue. Thereafter, on May 10, 1929, appellant duly filed…