(concurring). I concur in an affirmance of the judgment, with the modification thereof directed in the opinion prepared hy Mr. Justice Grace. As stated in that opinion, the specifications of error on this appeal relate to, and in reality present only, the one question, — May a judgment rendered in the superior court of California be sued upon in this state while an appeal from such judgment is pending in the supreme court of California, where there has been no compliance with the California statutes providing for a stay of proceedings on appeal upon the filing of a supersedeas bond ?
There is no controversy as to the facts in this case. The defendant in his answer expressly admitted that judgment was rendered against him as alleged in the complaint, and that he had not paid the judgment. This admission, of course, relieved the plaintiff of the burden of establishing, and of the necessity of offering any evidence, tending to establish, these facts. 1 Enc. Ev. 398. .Upon the trial it was stipulated! as a fact that the defendant had not filed a supersedeas bond as pre*241scribed by § 942, California Code of Civil Procedure. Hence, we have a situation where an action is brought in this' state upon a California judgment in all respects final and enforceable in that state, subject alone to the contingency that it may be reversed on appeal. It is a general rule, supported by the great weight of authority, that “the pendency of an appeal does not prevent an action on a foreign judgment, if the appeal does not operate as a supersedeas or stay of proceedings in the jurisdiction wherein it was rendered, or if there has not been a compliance with the requisite conditions to obtain a supersedeas.” 15 R. C. L. p. 942, § 419. See also 23 Cyc. 1504, 1563.
Appellant does not deny the existence or correctness of this general rule, but contends that it is inapplicable to a California judgment. As I read the California statutes and decisions, the appeal taken hy the defendant from the judgment involved in this case did not operate as a stay of proceedings on the judgment in California. I therefore agree with Mr. Justice Grace that, inasmuch as the defendant in this case failed to comply with the California statutes requisite to obtain a supersedeas, the plaintiff might bring suit in this state upon the California judgment, even though an appeal has been taken therefrom to, and is pending in, the supreme court of that state. The same conclusion was reached hy the supreme court of Oregon in Spencer v. Barnes, 65 Or. 231, 132 Pac. 707, Ann. Cas. 1915A, 1287.