Coburn

These cases are substantially alike, and will be considered together. Each action was *235 against the defendants, as sureties, upon a bond in certain condemnation proceedings. The bond was given in pursuance of an order of the court in the condemnation proceedings, that the plaintiff therein might, at the commencement of said proceedings, take possession of lands claimed by plaintiffs in these present actions, and sought therein to be condemned, upon giving an undertaking as provided by section 1254 of the Code of Civil Procedure, as it stood prior to 1880. The court, in each case, rendered judgment for defendants, and plaintiff appeals in each case from the judgment, upon the judgment-roll alone.

The judgments must be affirmed. . In the first place, the provision of the code, and of the statute which preceded the code, under which the orders for possession were made in the condemnation proceedings, was held to be and was unconstitutional, and the bonds or undertakings here sued on were void. (San Mateo Water Works v. Sharpstein, 50 Cal. 284 ; Sanborn v. Belden, 51 Cal. 266 ; Vilhac v. Stockton etc. R. R. Co., 53 Cal. 209 .) In the second place,-it is found by the court that…