
    [Civ. No. 465.
    Second Appellate District.
    March 25, 1908.]
    FRANK G. CHURCHILL, Appellant, v. JOHN F. MORE, Respondent.
    Claim and Delivery—Appeal—Undertaking to Stay Execution— Construction op Code.—Upon an appeal from a judgment in an action of claim and delivery of personal property which is in the alternative, primarily for return of the property, and ineidentally for a money judgment, if a return cannot be had, the provisions of section 942 of the Code of Civil Procedure for an undertaking on appeal to stay execution on a money judgment are not applicable.
    Id.—Bemedy Against Surety—Action on Bond—Stipulation por Motion—Void Judgment.—The remedy upon a bond on appeal in an action of claim and delivery must be by action on the bond, and not by motion. A stipulation in the bond of a surety for remedy by motion, upon affirmance of the judgment, rests upon the statute alone. The superior court had no jurisdiction to render a judgment in such case by motion; and a judgment so rendered is void for want of jurisdiction apparent upon its face.
    Id.—Submission op Surety Company to Jurisdiction—Payment op Judgment.—Where the surety company, without in any manner questioning the jurisdiction of the court, or resisting the remedy by motion submitted thereto, and without moving to vacate the judgment rendered upon motion of the plaintiff against it, paid and satisfied the amount thereof, the judgment against it has passed beyond review, so far as the surety company is concerned.
    
      Id.—Eights of Defendant—Contract for Indemnity—Collateral Attack on Judgment.-—-Where the judgment against the surety did not purport to bind the defendant, or to determine Ms rights under a contract of indemnity against liability on its bond, or to render any relief against him, the judgment being void on its face is open to collateral attack by him, and neither the voluntary nor coerced payment by the surety can have the effect to conclude him in an action on the contract of indemnity.
    Id.—Defendant not an Aggrieved Party—Improper Order Setting Aside Judgment.—The defendant is not an aggrieved party who could either appeal from the judgment against the surety or move to set it aside; and an order setting aside the judgment against the surety, on Ms motion, must be reversed.
    APPEAL from an order of the Superior Court of Santa Barbara County setting aside a judgment. S. E. Crow, Judge.
    The facts are stated in the opinion of the court.
    Richards & Carrier, for Appellant.
    Wm. G. Griffith, and Canfield & Starbuek, for Respondent.
   ALLEN, P. J.

Appeal by plaintiff from an order of the superior court of Santa Barbara county.

The case is this: Plaintiff obtained a judgment in an action for claim and delivery, by which judgment he recovered from defendant possession of certain specified personal property, or $1,636.80, the value thereof, in case delivery could not be had. From this judgment defendant appealed and gave an undertaking on appeal and a further undertaking in double the amount of the value of said property, conditioned that “if that part of the said judgment so appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will obey the order of the appellate court upon the appeal or will pay, in United States gold coin, the amount directed to be paid by said part of said judgment so appealed from, or by the part thereof as to which the said judgment shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal,” with the further stipulation “that if the appellant does not make such payment within thirty days after filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against said surety, for such amount, together with the interest that may be due thereon and the damages and costs which may be awarded against the appellant upon the appeal.” This undertaking was executed by the United States Fidelity and Guaranty Company. Preliminary to the execution of this undertaking defendant entered into a written contract of indemnity with the surety by which he agreed to indemnify and keep the1 said guaranty company indemnified from and against any and all loss, costs, charges, suits, damages, counsel fees, and expenses of whatever kind or nature, which said guaranty company shall or may, for any cause, at any time, sustain or incur or be put to, for or by reason or in consequence of said guaranty company’s having executed said bond. The judgment so appealed from was affirmed by the appellate court and a remittitur duly filed. More than thirty days after the filing of such remittitur plaintiff filed an affidavit setting forth the execution of said undertaking, the affirmance of the judgment, and, further, that the defendant had not performed the judgment of the court either by delivering the personal property or paying its value, and on November 19, 1906, applied to the court for judgment against the surety in accordance with the terms of the bond; and thereupon a judgment was rendered by said superior court in favor of plaintiff and against said surety company for the sum of $1,941.85, being the amount of the value of the personal property, together with costs and interest; that execution issued out of this judgment and the amount called for by such execution was collected by the sheriff 'of the city and county of San Francisco and paid over to plaintiff, who, on November 28, 1906, duly entered in the judgment-book a satisfaction of said judgment. Thereafter, on the 13th of May, 1907, defendant More moved the court to vacate and set aside the judgment rendered against the surety company upon the ground that the judgment so rendered was void for want of jurisdiction, and was procured by said plaintiff by a misrepresentation of fact, and that said judgment was given and made by said court against the surety company through inadvertence, surprise and excusable neglect. Affidavits and counter-affidavits were filed and, on the 27th of May, 1907, the superior court of Santa Barbara county granted the motion of said More vacating and setting aside said judgment, upon the grounds that said judgment was inadvertently given, and at the time of the rendition thereof the court was without jurisdiction of the person of said surety company and that said judgment is void. From this order of the court vacating the judgment plaintiff appeals.

Counsel for both appellant and respondent discuss in their briefs the character and effect of the undertaking given by the guaranty company. We think it not necessary for a proper determination of this case to determine whether or not the undertaking given is a statutory bond or a common-law bond, with or without consideration. It is sufficient to say that it is not an undertaking given under section 942 of the Code of Civil Procedure, which provides for an undertaking on appeal to stay execution on a money judgment, and which section alone ‘ provides for the entry of a judgment thereon on motion, in default of the payment of the judgment within thirty days after the filing of the remittitur. This undertaking being given in an action of claim and delivery where the judgment was in the alternative, primarily for a return of the property and incidentally for a money judgment for the value thereof if a return be not had, is not the undertaking contemplated by section 942, Code of Civil Procedure: “That section is applicable to a judgment which directs payment by the defendant of a specific amount of money, and which can be directly enforced by a? writ of execution, but has no application to a judgment which may be satisfied in either of two or more modes.” (Kreling v. Kreling, 116 Cal. 460, [48 Pac. 383].) The stipulation in the bond of the surety company that judgment may be entered upon motion rests for its efficacy on the statute alone. (Reay v. Butler, 118 Cal. 115, [50 Pac. 375].) Section 942 being the only statute authorizing the rendition of judgment upon motion, it follows that recovery upon any bond other than one covered by section 942 must be by action. • The superior court had no jurisdiction to render the judgment in this case on motion, and such want of jurisdiction is apparent upon the face of the judgment. Being so apparent the judgment was void. The surety company, however, without appealing therefrom or in any manner questioning the jurisdiction of the court, submitted to subsequent proceedings resulting in a fuE payment and discharge of said judgment and the same was satisfied of record. “Satisfaction means payment, and payment of a judgment cannot be treated as void for the purpose of attacking the juris.dietion of. the court that rendered it. The surety had its remedy,. by motion or otherwise, to vacate the satisfaction; but until set aside it is valid, and the judgment itself has passed beyond review.” (Morton v. Superior Court, 65 Cal. 498, [4 Pac. 491].) In a subsequent case (Kenney v. Parks, 120 Cal. 24, [52 Pac. 40]), the court, in considering the case last cited, says that the rule there laid down has no application when the party aggrieved has appealed within the statutory period. In this case the surety has neither ■ procured a vacation of the entry of satisfaction nor sought an appeal from the judgment, nor in any manner indicated its desire for relief therefrom. Defendant More alone moved the court for the vacation of the judgment, without moving for a vacation of the entry of satisfaction. The right of More to so proceed depends upon whether or not he is affected by the judgment. ' If such judgment against the surety had the effect, under any circumstances, to determine More’s rights, then he could move for its vacation. (Crossman v. Vivienda Water Co., 136 Cal. 575, [69 Pac. 220].) Section 473, Code of Civil Procedure, authorizes the court to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise or excusable neglect, and mistake of law is comprehended therein. The question is, therefore, presented as to the effect of this judgment upon More, for if it did not purport and did not in fact adjudge any relief against him personally, or against any property belonging to him, it did not in any wise conclude or impair his previously existing rights. The judgment being void upon its face was open to collateral attack, and neither the voluntary nor coerced payment by the surety can have the effect to conclude More in any action upon his indemnity contract. His liability thereon depends upon the' terms and scope of such contract, unaffected by any void adjudication upon the undertaking executed as a stay bond.

We are of opinion that, while the entry of the judgment against the surety upon an appeal bond is not a special proceeding, but is in sequence of the judgment rendered therein against appellant, in which action against appellant the surety made itself a party to the original action and proceedings (Hawley v. Gray Bros., 127 Cal. 562, [60 Pac. 437]), nevertheless More, while a party to the original proceeding, was not affected by this latter judgment and was neither an aggrieved party who might appeal, nor one who might procure a vacation of such judgment, unless the same was taken against him or in some manner amounted to an adjudication by which he was concluded in some right. This not being made to appear, we think it was error in the superior court to vacate this judgment upon motion of More, and the order vacating the same is reversed.

Shaw, J., and Taggart, J., concurred.  