Schacht

The plaintiff obtained final judgment below on the 29th of April, 1876, for some fourteen thousand dollars, and directing the sale of certain mortgaged premises. On the 19th of April, 1877, the defendants Odell and wife filed and duly served a notice of appeal, and on the next day filed an undertaking on an appeal, executed by two sureties, containing the usual recitals, and also the condition that the appellants would pay all damages and costs awarded against them on the appeal, not exceeding three hundred dollars — to the payment of which amount the sureties acknowledged themselves jointly and severally bound. The affidavit of the sureties accompanying the undertaking was to the effect that each of them was worth the amount therein mentioned over and above all his just debts and liabilities, exclusive of property exempt from execution; but it omitted to state that the sureties were residents or householders or freeholders within the State, as required by the Code of Civil Procedure (sec. 1057).

On the 18th day of May, 1877, the plaintiff gave notice to the defendants that he objected to the undertaking on appeal, by reason of this defect in the affidavit of the sureties, and…