Moffat

— This was an action against the defendants as sureties upon an undertaking given on an appeal from a judgment rendered in favor of the plaintiff in the justice’s court of Los Angeles City township. The judgment was rendered in the justice’s court, June 3, 1889. On the 18th of June the defendant in that case served and filed a notice of appeal therefrom, and on the 21st of June an undertaking on appeal executed by the defendants herein was filed in the justice’s court. June 22d, the plaintiff excepted to the sufficiency of the sureties, and they failing to justify, and no other undertaking being filed, the papers in the case were not transmitted to the superior court by the justice; and on the 7th of November, 1889, the superior court, upon the motion of the plaintiff, dismissed the appeal.

1. The allegation in the complaint that the defendant in the action in the justice’s court “ appealed to the superior court of said county and state from said judgment ” is a sufficient averment of that fact. The “ appeal ” is the ultimate fact to be alleged. The several acts performed in. taking it are but probative facts, and their allegation in the complaint would be obnoxious to the charge…