Kirsch

Motion to dismiss an appeal from a judgment rendered in favor of plaintiff and against defendant. The ground of the motion is, that no undertaking on appeal has been filed.

In the complaint it is averred that the defendant is the duly appointed, qualified, and acting executor of the estate of Julia Kirsch, deceased, and also, “ that on or about the 22d of May, 1890, the defendant, as such executor as aforesaid, received the sum of $3,725 from the German Savings and Loan Society,«a corporation, to and for the use and belonging to plaintiff.” The complaint further alleges plaintiff’s demand upon defendant for the money, and his refusal to pay, and asks for a personal judgment against him for the amount named. The defendant did not answer, and judgment by default was rendered against him personalty, as prayed for in the complaint.

The court below, upon motion of defendant’s attorneys, *575 made an order under section 946 of the Code of Civil Procedure dispensing with the undertaking on appeal, which order also recites that it appeared that the defendant was an executor, and about to appeal from the judgment.' We cannot say from the record that this order was made in a case to which…