In view of what is said in the concurring opinion of my associates, I desire to say with respect to the case of Ward v.Superior Court, 58 Cal. 519, that it is a very doubtful inference from the report that the undertaking in that case was, or purported to be, intended, to stay execution, while in the McConkey case the implication is very clear that *Page 715 the undertaking was intended to stay execution and was held insufficient to support the appeal for that reason. But whether this is so or not, one thing at least is clear: that it was held in the McConkey case that where a stay of execution was desired there must be two distinct undertakings, one for the stay and another to perfect the appeal, and that this construction of the statute required the word "or" to be read "and" — a view plainly necessary to sustain that conclusion. Now if section 978 of the Code of Civil Procedure is to be so read, the law governing appeals to the superior court cannot be distinguished from the law governing appeals to this court (Code Civ. Proc., secs. 940, 941, 942) and if the law is the same in both cases I confess my inability to reconcile the decision in Jones v. Superior Court,151 Cal. 589, [91 P. 505], [upon the authority of which this case is decided] with the decisions in Duffy v. Greenebaum,72 Cal. 157, [12 P. 74, 13 P. 323], and Duncan v. Times-MirrorCo., 109 Cal. 602, [42 P. 147], in which it was plainly decided that the insertion in a stay-bond of the condition required in an appeal-bond is ineffectual to support the appeal. If the views here expressed are correct, it must follow either that the McConkey case was overruled by the decision in Jones v. SuperiorCourt, or else that under the same statutory provisions we will (the undertakings being the same) dismiss an appeal to this court, and sustain an appeal to the superior court.
I think I am safe in adding that ever since the decision inDuffy v. Greenebaum, the superior courts throughout the state had understood the law to be that they were without jurisdiction to hear an appeal from a justice's court, unless there was a separate undertaking — distinct from the stay bond — to pay costs — and that numerous appeals have been dismissed in which parties have filed undertakings, such as that which was held sufficient to support the appeal in Jones v. Superior Court. And I have no doubt that the first order of the superior court dismissing the appeal in this case was made in obedience to those earlier decisions, and set aside when attention was called to the latter. *Page 716