
    [No. 12776.
    Department One.
    June 10, 1890.]
    SARAH ALTHEA SHARON, Respondent, v. FREDERICK W. SHARON, Executor, etc., Defendant, and LLOYD TEVIS and E. J. BALDWIN, Appellants.
    Conflict between Federal and State Courts — Priority of Jurisdiction ■—Injunction. —The principles established in Sharon v. Sharon, supra, affirmed, and applied to this case.
    Appeal Bond—Motion for Judgment against Sureties — Liability of Principal. —A plaintiff who is not entitled to recover against the principal defendant cannot recover against the sureties on his appeal bond; and the sureties may avail themselves of any defense against a motion for judgment upon the bond of which the principal defendant could avail himself.
    
      Appeal from a judgment of the Superior Court of the city and county of San Francisco.
    The facts are stated in the opinion of the court.
    
      William F. Herrin, for Appellants.
    
      William T. Baggett, and James G. Maguire, for Respondent.
   Fox, J.

Tevis and Baldwin were the sureties on the undertaking given on the appeal from the judgment originally entered in this cause (75 Cal. 1); and when, on the fifth day of May, 1888, the plaintiff moved the court below for judgment against the present defendant, executor of the will of the original defendant, for alimony and costs, she also moved that the judgment be entered up as a judgment against the sureties, as well as against said defendant, and in entering the judgment it was so done. From the judgment so entered against them, the sureties appeal.

So long as the plaintiff was not entitled to recover against the defendant, she could not recover against the sureties. (Parnell v. Hancock, 48 Cal. 452.)

On the authority of that case, and of Sharon v. Sharon {ante, p. 424, this day decided), the judgment appealed from in this case, being the judgment entered in this cause against Lloyd Tevis and E. J. Baldwin, June 23, 1888, upon the motion of the plaintiff made May 5,1888, is reversed, and the court below is directed to enter an order denying plaintiff’s said motion.

Works, J., and Paterson, J., concurred.  