Hawley

The respondent recovered a money judgment against the Gray Brothers Artificial Stone Paving Company, from which the defendant therein appealed to the supreme court, and the appellants herein, as sureties for said appellant, executed an undertaking on appeal sufficient in form and amount to stay the enforcement of the judgment. The judgment appealed from was affirmed, and a remittitur from this court was filed in the superior court June 7, 1897. Upon the same day, that court, upon motion of the plaintiff, entered judgment against the sureties upon their undertaking. From this judgment the sureties appealed, and, upon the confession of the respondent therein that the judgment appealed from was prematurely entered, this court reversed the judgment and remanded the cause. Thereafter the superior court, upon the motion of the plaintiff, ordered judgment to be entered against the appellants herein—the sureties on the original appeal—and from the judgment thus entered they have appealed.

The entry of judgment against the sureties upon an appeal bond is not a special proceeding within the definition of section 23 of the Code of Civil Procedure, hut is a part of the procedure in the…