— This case was originally commenced in a justice’s court, and was thereafter appealed to the district court. From an order and judgment of the district court dismissing the appeal so taken this appeal was prosecuted. The appeal from the justice court was dismissed by the district court on the ground that the appellant had failed to give an undertaking as required by law. The judgment of the justice’s court was entered on November 3, 1904. Notice of appeal therefrom was filed and served on November 3, 1904. Thereafter, and on December 2d, an undertaking on appeal was filed, and on December 6th the plaintiff and respondent served and filed his exception to the sufficiency of the sureties. On December 9th the defendants and appellants served and filed notice that on the tenth day of December, at 10 o’clock A. M., “H. M. Hughes and S. T. Davis, in lieu of W. C. Lane, the sureties upon the undertaking of the defendants, ’ ’ would justify before the justice of the peace. On the same date the defendants filed an appeal bond signed by Hughes and Davis, and the plaintiff’s attorney, in company with defendant’s attorney, appeared before the justice of the peace and waived the justification of the sureties and accepted the new. or substitute bond and the sureties thereon. The papers were transmitted to the district court and the attorney for the plaintiff and respondent appeared in that court and waived a jury. Thereafter the attorney for the plaintiff withdrew from the case and the cause was set for trial March 10, 1905, at 10 o ’clock A. M. Before the day set for the trial of the case, the plaintiff appears to have employed the counsel who appears for him in this court, and on the seventh day of March, through such counsel, filed his motion to dismiss the appeal, which was sustained by the court. Respondent takes the position here that, since the old sureties did not justify and other sureties signed and executed a new and separate instrument, which was filed in lieu of, and as a substitute for, the original bond, and which acts were done more than thirty
Mr. Spelling, in volume 2 of his New Trial and Appellate Practice, section 571, seems to take this view of the matter and says: “Where new sureties are substituted for the original, there appears no other method by which such substitution and justification can be accomplished than by the execution of a new undertaking.” It is argued, however, by respondent, that, since the new sureties did not in fact justify as required in such cases, the substituted undertaking was invalid and void from the beginning, and never amounted to a compliance with the statute. This contention is completely answered by the waiver of respondent’s counsel as to the justification of sureties and the acceptance of the new bond. Counsel for respondent might waive justification, or, in fact, he might have waived an undertaking altogether (Blair v. Hamilton, 32 Cal. 50; Bank of Escondido v. Superior Court, 106 Cal. 43, 39 Pac. 211; 2 Spelling on New Trial and Appellate Practice, sec. 572); and indeed it is a serious question in our minds if the counsel for respondent did not waive his right to be heard upon his motion to dismiss the appeal by generally appearing in the district court and waiving a jury trial.
The trial court erred in dismissing the appeal. The judgment will be reversed and the cause remanded to the district eourt, with instructions to vacate the order dismissing the