McCallion

— This was a motion by plaintiffs for judgment against the sureties on an undertaking on appeal. The motion was denied, and the plaintiffs appeal.

The action related to the right to a deposit in the Hibernia Bank. The bank paid the money into court, and other parties were substituted as defendants. The plaintiffs recovered a judgment, and the substituted defendants appealed from such judgment, and from an order denying their motion for a new trial. In order to effect a stay of execution, the substituted defendants gave (in addition to the three hundred dollars undertaking) an undertaking in double the amount of the judgment, which undertakings were in the same instrument. The promise of the sureties set forth in the stay undertaking was as follows: —

Under this agreement we think it clear, in the first place, that the stay undertaking related to the appeal from the judgment, and not to the appeal from the order on motion for new trial. It is not doubted that a stay undertaking can be so drawn as to effect a stay on appeal from an order denying a new trial. (See Fulton v. Hanna, 40 Cal. 278 .) But the undertaking here was not so drawn. Its condition was that “if the said judgment…