
    [Sac. No. 4015.
    In Bank.
    January 18, 1927.]
    M. ELMA FOSTER, Respondent, v. J. V. FERNANDES et al., Appellants.
    
       Appeal — Undertaking on — Failure op Sureties to Justify in Time—New Undertaking—Supersedeas.—Where an appellant, in good faith, gives notice and presents the sureties on his appeal bond given to stay execution one day too late, under the erroneous belief that he was within time, a writ of supersedeas will issue to preserve the status quo, upon the appellant giving- a new undertaking in accordance with the order of the court.
    (1) 3 C. J„ p. 1288, n. 49, p. 1290, n. 63. 1. See 23 Cal. Jur. 985.
    
      APPLICATION for a Writ of Supersedeas to stay execution. Writ granted.
    The facts are stated in the opinion of the court.
    G. W. Zartman and Russell & Heid for Appellants.
    Feemster & Cleary for Respondent.
   THE

Upon submission of the cause in open court, the Chief Justice announced the decision of the court as follows:

In this action to recover certain cattle, or the value thereof, together with damages for their wrongful detention, judgment was entered for plaintiff. After motion for new trial made and denied, defendants gave notice of appeal, and, in due time, filed an undertaking on appeal in the sum of fifteen thousand dollars, properly conditioned to stay execution. Thereafter the respondent having excepted to the sufficiency of the sureties, appellants served notice that the sureties would justify before the court on the third day of December, 1926, on which day they appeared in court with the sureties. After due examination, the trial court found the sureties were qualified to act as such, but refused to permit them to justify on the ground that they appeared one day too late, the delay being explained by the fact that the appellants erroneously believed they had until December 3, 1926, within which to have said sureties justify. Execution was thereupon issued on behalf of the plaintiff upon the judgment entered in the cause, and the appellants have applied to this court for writ of supersedeas.

Under the rule stated in Nonpareil Mfg. Co. v. McCartney, 143 Cal. 1 [76 Pac. 653], and Segarini v. Bargagliotti, 193 'Cal. 538 [226 Pac. 2], good faith having been shown by appellants, we deem it proper, in the exercise of sound discretion, to grant them the writ prayed for, upon such terms as will be just and will adequately protect the rights of the respondent, in order to preserve the status quo until the final determination of the action.

It is ordered that, upon the filing by petitioners, with the clerk of this court, within fifteen days, of a good and sufficient undertaking on appeal in,the sum of fifteen thousand dollars, conditioned as required by law, and which shall have been first approved by a judge of the superior court in and for the county of Tulare, at a hearing upon five days’ notice to respondent, a writ shall issue as prayed for herein.

It is further ordered that in the meantime, during said period of fifteen days, the execution of the judgment referred to in the petition be stayed.  