Opinion
Appeal from the Fourteenth District.
Suit brought in Nevada county by plaintiff against the defendant, as Sheriff of that county, to recover damages for breaking into a house at Orleans Flat, Nevada county, and also the value of certain personal property which he levied on under an execution in the suit of Saunders v. Denton et als. Plaintiff having recovered judgment, defendant (Van Hagen) filed his notice of appeal to the Supreme Court, and also an undertaking signed by two residents of Sacramento county, and justified to before a Notary Public of that county. Saunders, the plaintiff in the suit against Denton et als., was a resident of the county of Sacramento, and procured sureties in that county. Van Hagen, the Sheriff, being indemnified, Saunders had to give the undertaking. The undertaking was filed on the twelfth day of January, 1861. The sureties were excepted to on the fourteenth of January, and notice was given to respondent that the sureties would again justify on the nineteenth of January. The appellant also procured an order from the District Judge of Nevada county requiring the justification to be taken before the County Judge of Sacramento county, at his office, of which the respondent had due notice, and no exception was taken or objection urged. Upon the nineteenth day of January aforesaid, the sureties appeared before the County Judge of Sacramento county, and were examined by him as to their solvency, and justified.
Respondent moves to dismiss the appeal, on the ground that this Court has no jurisdiction, the sureties on the undertaking on appeal not having justified before a proper officer after exception taken.
COUNSEL
McConnell & Garber and John Anderson, for the motion.
J. J. Caldwell and J. H. Gass, contra.
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
The appeal must be dismissed. The true construction is that the sureties must justify before a County Judge--when that is the officer selected--of the county in which the suit is. Any other construction, if it did not render the main provisions of the statute practically inoperative, would lead to very onerous and embarrassing results. We think the natural construction of the language of the three hundred and fifty-fifth section of the Practice Act leads to this conclusion.
Ordered accordingly.