Downing v. Rademacher

HARRISON, J. The respondents have moved to dismiss the appeal herein upon the ground that the appellants—the plaintiff and one of the defendants—have given a joint notice of appeal, whereas, inasmuch as they are on opposite sides of the record, each appellant should have given a separate *674 notice; that the undertaking on appeal is insufficient, in that it is joint on behalf of both appellants, instead of a separate undertaking on behalf of each; that no payee is named therein; and that it does not appear from the record that it was filed within the time required by law. 1. The action was brought by the plaintiff against the defendants to quiet his title to certain'mining property. Two of the defendants,—the respondents herein,—in addition to answering the complaint, filed a cross-complaint against the plaintiff and one of their co-defendants, upon which judgment was rendered in their favor and against the defendants in the cross-complaint, and the appeal is from that judgment. While the trial of the issues presented under this cross-complaint is in the action brought by the plaintiff against the several defendants, the judgment is in legal effect the same as if the cross-complainants had instituted an original action against the plaintiff and their co-defendant, and obtained judgment therein. The judgment is against the appellants herein, and the fact that they were on opposite sides of the record in the original complaint does not impair their right to unite in the appeal or to give a joint notice of appeal any more than if they had been defendants in an original action against them by the respondents. 2. In the undertaking filed herein the sureties “do hereby jointly and severally undertake and promise on the part of the appellants that the said appellants will pay all damages and costs which may be awarded against them on appeal or on a dismissal thereof, not to exceed $300.” The code does not require a separate undertaking on the part of each appellant, its provision being (Code Civ. Proc., sec. 941) that it must be executed “on the part of the appellant” by two sureties to the effect “that the appellant will pay” the damages and costs that may be awarded him on the appeal. By section 17 of the Code of Civil Procedure, “the single number includes the plural,” and there is the same reason for holding that the appellants may unite in the undertaking as in the notice of appeal. The omission of a payee in the undertaking is immaterial. The code does not require that it shall contain the name of the payee, and a proper construction of the undertaking herein renders the sureties liable thereon to the *675 respondents. Aside from these considerations, as the undertaking in the present case is in the form which has been in use for many years, we would not feel justified in disturbing so long and well-settled a practice. 3. In his certificate attached to the transcript the clerk certifies that “a good and sufficient undertaking on appeal in due form was properly filed herein.” This complies with the requirements of the code (sec. 953); and is prima facie sufficient. (Meeker v. Hoffer, 57 Cal. 140.) If the certificate was incorrect, it was incumbent upon the respondents to make that fact to appear. The motion is denied. Garoutte, J., and Van Dyke, J., concurred.