Pieper

This was an action against the defendants as sureties upon an undertaking given to slay execution of judgment pending appeal. The defendants demurred to the complaint on the ground of insufficiency, and the demurrer was properly overruled. They then answered, and plaintiff had judgment, from which the defendants appeal upon the judgment-roll alone.

It is substantially alleged, and the court finds, that one Marie Albert obtained a judgment in a justice’s court against one Lucas for the delivery of a certain lot of hay, or the value thereof in case delivery cannot be had; that Lucas thereafter filed and served notice of appeal therefrom to the superior court, and that thereupon the defendants executed and filed in the justice’s court their written undertaking and justification on appeal, conditioned in pursuance of the provisions of section 978 of the Code of Civil Procedure; that the appeal was thereafter dismissed by the superior court; that no part of the hay has ever been delivered, nor any part of its value or the costs ever been paid pursuant to the judgment, and that the judgment was duly assigned to plaintiff.

It was not necessary to the sufficiency of the complaint to…