Opinion
Appeal from the District Court, Fifteenth Judicial District, city and county of San Francisco.
Plaintiff recovered judgment, and defendants, who were the sureties on the undertaking on appeal, appealed.
COUNSEL:
Byrne & Freelon, for Appellants.
James Mee, for Respondent.
JUDGES: Sanderson, C. J. Mr. Justice Rhodes expressed no opinion.
OPINION
SANDERSON, Judge
The only question involved in this appeal relates to the effect of a judgment of this Court dismissing an appeal upon the liability of the sureties upon the undertaking on appeal, it being claimed that they do not become charged by such a judgment, and that such a result follows only from a formal judgment of affirmance in whole or in part.
The appeal in question, as appears from the record, was dismissed upon the motion of respondent, based upon the written consent of the attorneys for the appellant. Thus made, the judgment of dismissal was a final determination of the appeal by this Court, and the judgment of the Court below was no longer open for review. Such being the case, the question as to its effect upon the liability of the sureties upon the undertaking is not an open question in this State. Such a dismissal operates as an affirmance of the judgment, and suffices to charge the sureties. ( Osborn v. Hendrickson, 6 Cal. 175; Karth v. Light, 15 Cal. 324; Chamberlain v. Reed, 16 Cal. 207; Ellis v. Hull, 23 Cal. 160; Rowland v. Kreyenhagen, 24 Cal. 52.)
Judgment affirmed.