Baldwin, J. and Cope, J. concurring.

In 1857 the plaintiff recovered a judgment against Houck and Meyers, for the possession of certain premises, situated in the city of Sacramento. From the judgment Houck appealed to the Supreme Court; and to stay its execution, pending the appeal, filed the undertaking upon which the present action is brought. The undertaking provides, in the terms of the statute, that the defendants “ will not commit, or suffer to be committed any waste thereon ; and that if the judgment be affirmed, they will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of the possession thereof, pursuant to the judgment, not exceeding two thous- and dollars.” By this undertaking, proceedings upon the judgment were stayed. At the January term of 1858, the appeal was dismissed by the Supreme Court, for want of prosecution ; and the question presented for determination is, whether this dismissal was equivalent in law to an affirmance of the judgment, within the statute ? Upon the solution of the question, the liability of the sureties on the undertaking depends. The Court below held, that the dismissal of the appeal was not such an affirmance of the judgment, and as hence there could be no breach of the undertaking, ordered a nonsuit.

The object of the undertaking was to retain the defendants in the ejectment, in the possession of the premises, pending the appeal, and at the same time to afford indemnity to the plaintiff for any loss he might sustain, by the deprivation of the use of the premises, or by waste committed thereon—if the judgment in his favor should not be *326 reversed by the appellate Court. The appellant, in fact, asserts a right to retain possession against the judgment, upon the ground that such judgment will be ultimately held invalid by the Court to which he has appealed. Whether, then, the dismissal of an appeal is to be deemed equivalent to an affirmance of the judgment, will depend upon the question whether, after such dismissal, the judgment can be again open to examination; and upon this question the rules of the Court give the answer. By statute the appellant is required to furnish the requisite papers for the hearing of the appeal, and if not thus furnished the appeal may be dismissed. (Prac. Act, as amended in 1854, sec. 346.) And by the rules of this Court—which were in force at the time—when an appeal is perfected, and the statement settled twenty days before the next succeeding term, the transcript of the record must be filed on or before the first day of such term, or the appeal may be dismissed, on motion; and, unless the cause thus dismissed be restored during the same term, the dismissal operates as a bar to any other appeal in the same cause. In the ejectment case, the appeal was dismissed for this neglect to file the transcript, and upon the order of dismissal the remittitur issued, the cause not having been restored. The judgment thereupon became final, not being afterwards open to review. It was, therefore, to all intents and purposes, within the meaning of the statute, affirmed.

The cases in which the dismissal of an appeal will not operate as a bar to a second appeal, are those where the dismissal has been made upon some technical defect in the notice of appeal, or the undertaking, or the like. The bar applies where the dismissal is for want of prosecution, and the order is not vacated during the term, or the dismissal is on the merits.

In the case of Watson v. Husson, ( 1 Duer, 252 ) the Superior Court of the city of New York held, under a statute precisely similar to our own, that a dismissal of an appeal was not an affirmance of the judgment. Some of the grounds upon which that decision rests are answered by the effect given to the rules of this Court.

“ A judgment,” says Mr. Justice Duer, “ affirmed in the Court of ultimate jurisdiction can never again be questioned; and if the effect of the dismission of the appeal was to preclude any farther examination or impeachment of the judgment, it might reasonably be contended that the averment in the complaint that the judgment was affirmed, is sustained by the admitted fact, that the appeal was dismissed. It is not *327 pretended, however, that such was the effect of the dismission of the appeal. It is not denied that its only effect was to replace the judgment in its former condition, leaving its merits still open to examination upon a second or further appeal; and it is impossible for us to say that a judgment has been affirmed which, after the appeal was dismissed, was still liable to be reversed.” And the learned Justice observed that to affirm a judgment was to declare by a judicial sentence of the appellate Court its validity, and that it was a legal solecism to say that a judgment had been affirmed when the question of its validity was exactly that which the appellate Court refused to consider. With the highest respect for the opinion of the learned Justice, we think the solecism is not so apparent, but on the contrary, that a judgment may in the contemplation of the statute be said to be affirmed, when by any action of the appellate Court it is no longer open for review—whether that be either by a dismissal of the appeal or by a direct decree of affirmance. (See Harrison v. Bank of Kentucky, 3 Marsh. 375 ; Osborn v. Hendrickson, 6 Cal. 175 .)

By the statute, the undertaking providing for the liability of the sureties, upon the condition of the affirmance of the judgment, operates as a stay, and if by a mere neglect to prosecute an appeal, and for that reason suffering it to be dismissed, after the respondent has been deprived of his rights under the judgment by the undertaking, the sureties could be released, upon the pretense that the judgment was not affirmed, it is evident that great injustice would be, in many instances, perpetrated, and a fraud practiced upon respondents.

It follows, from the conclusion to which we have arrived, that the nonsuit must be set aside, and the judgment reversed, and the cause remanded for a new trial; and it is so ordered.