liens on personal property. (Constitution, art. VI, sec. 11.) The supreme court is a court of record-by reason of Gjurich's appeal it acquired exclusive jurisdiction of every question in that case, including the right of the defendant to enforce the judgment for costs. But it seems that a justice of the peace can forestall our judgment upon that question, and that his judgment affirmed by the superior court, though confessediy erroneous, is remediless, because it is no excess of jurisdiction for a justice of the peace to enforce a part of a judgment less in amount than three hundred dollars, while the validity of that judgment is a question pending in this court. I prefer, however, the opposite conclusion of the district court of appeal.

The following is the opinion of the district court of appeal of the third appellate district, rendered on August 30, 1911, referred to and the conclusions of which were approved in the dissenting opinion of Beatty, C. J. :—

BURNETT, J.-This is a proceeding in certiorari and grows out of the following situation: On April 22, 1909, in the superior court of the county of San Joaquin, an action was brought by E. Gjurich, one of the petitioners herein, against one Fanny Fieg to recover the sum of five thousand dollars for alleged services. Thereupon a writ of attachment was issued and levied upon certain real and personal property of the defendant in the action. The undertaking for said attachment was executed by A. T. Karry and Herman Wendel, petitioners herein, and provided that they "do jointly and severally undertake in the sum of four hundred dollars, and promise to the effect, that if the defendant recover judgment in said action, the said plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of said attachment, not exceeding the sum of four hundred dollars." The action was tried and, on June 10, 1910, judgment rendered in favor of the defendant Fieg for costs in the sum of $145.71; on June 14th, following, notice of appeal from said judgment was given and on the same day said Gjurich filed his undertaking on appeal with the clerk of the court. For the purpose of continuing in force the said attachment during the pendency of said appeal, the

said Gjurich, on June 15, 1910, filed an undertaking in due form, according to the provisions of section 946 of the Code of Civil Procedure, in the sum of ten thousand dollars, being double the amount of the debt claimed by said Gjurich, to secure the payment to said Fieg of all costs and damages which she might sustain by reason of said attachment. On the first day of July, 1910, while the aforesaid action was pending on appeal in the supreme court, the said Fieg brought an action in the justice court of O'Neal Township, in said county, against petitioners herein, to recover said costs and damages claimed by reason of said attachment. The defendants appeared and pleaded in abatement the pendency of said appeal in the supreme court and the giving of said undertaking to continue the attachment in force. The justice court awarded judgment to the plaintiff therein as prayed for. The defendants thereupon appealed to the superior court of said county and, after a trial before Hon. J. A. Plummer, judgment was rendered in favor of said plaintiff, Fieg, and against the said defendants, the petitioners herein, for $145.71, the amount of the judgment recovered in the first mentioned action. As a return to the order to show cause issued by this court, a demurrer was filed and also a certified copy of the proceedings in the court below, sufficiently ample for the purposes of this decision. For convenience of reference, we shall hereafter designate the original action brought by Gjurich against Fieg as number one and the action brought by Fieg against petitioners here to recover her costs and damages as number two.

The first question in order of sequence is, seemingly, what was the effect upon the judgment of the appeal in action number one? As to this, in view of the provisions of the statute and the decisions of the appellate courts, there can be, apparently, no kind of doubt. Section 946 of the Code of Civil Procedure provides that "Whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein ... but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from. . . . An appeal does not continue in force an attachment unless an undertaking be executed and filed on the part

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of the appellant by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless, within five days after the entry of the order appealed from such appeal be perfected." Section 949 of the same code is, as far as it goes, to the same effect and is as follows: "In cases not provided for in sections nine hundred and forty-two, nine hundred and forty-three, nine hundred and forty-four, and nine hundred and forty-five, the perfection of an appeal by giving the undertaking or making the deposit mentioned in section nine hundred and forty-one, stays all proceedings in the court below upon any judgment or order appealed from, except where it directs the sale of perishable property." It is not disputed that the appeal here was perfected as required by the statute.

If we are to give effect to the simple, unequivocal terms of the law, unless we have a case within some of the exceptions mentioned, it necessarily follows that no step could be taken legally to enforce or carry into execution or to impair or modify in any respect said judgment during the pendency of said appeal. It is apparent, indeed, from an examination of the foregoing provisions relating to the exceptions, that they have no application to the case at bar. In fact, there can be and is no pretense that any of them is germane to the question before us except possibly said section 942 of the Code of Civil Procedure, which provides that "If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order," etc. But a judgment for costs is not a judgment directing the payment of money in the sense of the statute. The judgment under review was essentially that plaintiff take nothing and, as an incident thereto, that defendant be allowed her costs.

If additional assurance of the foregoing be sought, we may find it in the decisions at hand.

In Snow v. Holmes, 64 Cal. 232, [30 Pac. 806], it was held that, on appeal from a judgment of foreclosure of a mortgage upon personal property, the undertaking in the sum of three

hundred dollars is sufficient to stay the execution of a judgment pending the appeal.

In re Schedel, 69 Cal. 241, [10 Pac. 334], involved the effect of an appeal from a decree of distribution and the general rule was held to apply and it was declared that "sections 942 to 945, inclusive, apply to appellants who are required to perform the directions of the judgment or order appealed from. This is manifest from their language."

In Pennie v. Superior Court, 89 Cal. 31, [26 Pac. 617], it was held that, on appeal from an order requiring the administrator to pay a family allowance to a certain claimant, an undertaking in the sum of three hudred dollars stayed all proceedings and that an order made after said appeal directing the administrator to make the payment is beyond the jurisdiction of the superior court and should be annulled upon certiorari.

So, in Powers v. Chabot, 93 Cal. 266, [28 Pac. 1070], it was held that, since no bond is required to stay execution in addition to the usual bond for costs on appeal from a judgment foreclosing a chattel mortgage, a bond given upon such appeal, to secure a judgment for deficiency, is not a statutory bond and is without consideration and void.

In McCallion v. Hibernia, etc., Society, 98 Cal. 445, [33 Pac. 329], it is said: "As to that portion of the judgment awarding costs against appellants, a stay-bond was not required to restrain the issuance of an execution to recover such costs. The appeal-bond effected that object. The real judg ment in the case is that plaintiffs are the owners of the money, and no stay-bond being required by the statute as to such a judgment, no stay-bond is demanded as to the costs. The costs taxed against the defendant were incidental to the judgment, and as to a stay of execution, inseparably connected therewith. A judgment for costs is not the judgment directing the payment of money contemplated by section 942. If such were the fact, a stay-bond would be required in almost every conceivable case, when to the contrary, it is only required in the four cases covered by sections 942 to 945 of the code."

It must be apparent that even the exceptions provided for in the code present a somewhat anomalous situation. It seems rather peculiar that an execution based upon and presuppos

ing a judgment should be permitted before there really is a judgment in the proper sense of the term. "A judgment is the final determination of the rights of the parties in an action or proceeding" (Code Civ. Proc., sec. 577) and “until litigation on the merits is ended, there is no finality to the judg ment, in the sense of a final determination of the rights of the parties, although it may have become final for the purpose of an appeal from it." Gillmore v. American C. I. Co., 65 Cal. 63, [2 Pac. 882]. In the exceptional cases referred to, however, the "judgment" signifies the determination by the trial court of the rights of the parties, but those cases should not, obviously, be enlarged beyond the terms of the statute.

The next inquiry is, What was the basis for the complaint or the cause of action in number two upon which plaintiff relied for recovery? It is contended by respondent that the action was brought upon the undertaking in attachment and that the suit was not brought on the judgment in action number one. In a sense it must be true that said undertaking is the basis for the action. The undertaking constituted a contract for the payment of money under certain conditions. But it is as clear as anything can be that the obligation imposed upon the sureties on that undertaking was a conditional one, contingent upon the happening or existence of certain facts. The sureties bound themselves to pay only "if the defendant recover judgment in said action." Said recovery of judgment in number one was and is, therefore, an essential element in the cause of action in number two. The recovery of judgment was the circumstance agreed upon to fix the liability of the sureties and make it absolute instead of conditional. "A suit on a bond cannot be commenced before there is any breach of the bond." Cook v. Ceas, 143 Cal. 226, [77 Pac. 65]. While it may not be said, probably, that the recovery of judgment in action number one is the sole cause of action in number two, it must be conceded that no cause of action could have been stated without an averment that said judgment had been recovered, and the said-action could not be maintained without proving that judgment was rendered for defendant in action number one. But there is no principle better established than that sureties may stand upon the strict letter of their undertaking and its terms must be strictly construed in their favor. Indeed, since it is a statutory bond, it is reason