able to hold that the terms used therein which are defined by the statute were used in such statutory sense. Therefore the action against the sureties was premature for the reason that no judgment has as yet been rendered in action number one, the action being still pending on appeal and the "judgment" referred to meaning the final determination of the rights of the parties.

But, again, the sureties promised to pay "all costs that may be awarded to the defendant and all damages which he may sustain by reason of said attachment." What does the term "costs" comprehend? Considered in connection with the preceding clause in reference to the recovery of judgment, it can simply mean that the sureties will pay all costs that may be awarded to the defendant therein by the judgment in action number one-in other words, whatever judgment for costs that may be rendered. By said judgment, therefore, if rendered, is the fact of their liability fixed and the extent of their liability determined. Thus it is clearly disclosed that the judgment in action number one is the basis for action number two. But it is settled beyond controversy that "an action will not lie upon a judgment until it has become final." Feeney v. Hinckley, 134 Cal. 468, [66 Pac. 580]: "Until that time has arrived, no cause of action upon the judgment has accrued." Hills v. Sherwood, 33 Cal. 474. In Cook v. Ceas, 143 Cal. 226, [77 Pac. 65], it is said: "It has been held here in a great number and great variety of cases that so long as an action or proceeding is pending in this sense the judgment or order from which an appeal has been or may be taken cannot be made the basis of any new action."

There is only one other possible application of the term "costs" as used in said undertaking and that is to refer it to the expense that may be incurred by reason of the attachment. But, under said construction, it is apparent that no ground for the action exists, since the attachment is still in force by virtue of the said ten-thousand-dollar-bond. There could be no breach of the undertaking to pay the costs and damages caused by the levy of the writ of attachment while the property is still lawfully subject to said writ. We presume this will not be disputed.

The result of the foregoing discussion, as we conceive it, is that the trial court awarded judgment upon a cause of action

that had not arisen and that may never arise by reason of the disposition hereafter of said appeal to the supreme court. It may be stated also that if respondents should be upheld petitioners will be required to pay the money, although it may be subsequently determined that defendant in action number one is not entitled to judgment for costs. Whereas, if the action of the court below is annulled, plaintiff in number two is abundantly protected by the said ten-thousand-dollar-bond.

No doubt this was given consideration by the learned trial judge but it appears from his opinion that he felt constrained by the decision in Bailey v. Aetna Indemnity Co., 5 Cal. App. 740, [91 Pac. 416]. In our opinion, however, that case is easily distinguishable from this; there an action was brought and a writ of attachment was levied upon property belonging to the defendant. A bond was thereupon given by defendant for the release of said property and it was accordingly relieved from the lien of said levy. Judgment was obtained by plaintiff in the action and there was no stay of execution. A writ of execution was thereupon issued and returned unsatisfied. The very conditions existed, therefore, which were necessary to fix the liability of the sureties on the bond given to release the attachment, and a judgment against them was properly upheld. This is made clear by reference to sections. 552, 554, and 555 of the Code of Civil Procedure. The last two provide for the release of the attachment upon the giving of an undertaking and they prescribe the terms of said undertaking; and section 552 provides that "If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section five hun dred and forty or section five hundred and fifty-five, or he may proceed, as in other cases, upon the return of an execution." Here, as we have seen, no execution on the original judgment was issued or could be legally, and the liability of the sureties is contingent and not absolute.

The remaining question is as to the remedy. Herein it is claimed that at most a mere error was committed not in excess of jurisdiction and that it cannot be reached by certiorari.

We deem it unnecessary to discuss the function and scope of this writ, as the subject has received ample consideration from various courts. Reference may profitably be had to the following decisions, among others, of our supreme court:

Monreal v. County Judge, 46 Cal. 79; Reynolds v. County Court of San Joaquin, 47 Cal. 604; In re Schedel, 69 Cal. 241, [10 Pac. 334]; Pennie v. Superior Court, 89 Cal. 31, [26 Pac. 617]; Buckley v. Superior Court, 96 Cal. 119, [31 Pac. 8]; Stewart v. Superior Court, 100 Cal. 543, [35 Pac. 156]; Holbrook v. Superior Court, 106 Cal. 589, [39 Pac. 936]; Schwartz v. Superior Court, 111 Cal. 106, [43 Pac. 580]; McClatchy v. Superior Court, 119 Cal. 413, [39 L. R. A. 691, 51 Pac. 696]; Daly v. Ruddell, 129 Cal. 300, [61 Pac. 1080]; Stumpf v. Board of Supervisors, 131 Cal. 364, [82 Am. St. Rep. 350, 63 Pac. 663].

It may be said as to these cases that they are substantially consistent in their exposition of the nature of the writ and of the legal principles involved in its operation, but in the application of those principles to the diverse facts of the various cases we find quite a contrariety of opinion. This is not surprising, since it is manifestly a question of great difficulty, at times, to determine whether an error is jurisdictional or not and what facts are essential to clothe the court with legal authority to proceed with the trial of an action.

It is confidently asserted, though, that if the situation here is understood, authority for the issuance of the writ will not be hard to find and such authority will be recognized as consonant with well-established principles of law.

To reiterate somewhat, the case is essentially this: A judgment was rendered in a certain action. An appeal was taken which, ipso facto, stayed all proceedings upon that judgment. Nevertheless, another action was brought, based upon said judgment and which constituted in effect an attempt to make said judgment operative and to carry it into execution. The prosecution of this proceeding was permitted by the trial court. It would be no different in principle if the court had allowed an execution to be issued and levied to satisfy said judgment. Since all proceedings upon said judgment looking towards its enforcement were and are stayed by the plain provisions of the statute, no court has any legal authorityin other words, any jurisdiction-to entertain a proceeding to appropriate the fruits of the litigation while that litigation is still pending and undetermined.

In re Schedel, 69 Cal. 241, [10 Pac. 334], decided that a writ of supersedeas should issue to stay proceedings on a

decree of distribution of the estate of a deceased testator pending an appeal therefrom by a legatee. The writ of supersedeas is "an auxiliary process designed to supersede the enforcement of the judgment of the court below brought up by a writ of error for review." (Williams v. Bruffy, 102 U. S. 249, [26 L. Ed. 1351.) It is issued because of the want of jurisdiction to enforce the judgment. It stays a threatened step towards execution. The effect is the same as the annulment by certiorari of steps that have already been taken for the enforcement of a judgment whose operation has been suspended.

In Pennie v. Superior Court, as we have already seen, the order directing the payment of the family allowancee was annulled on certiorari.

Stewart v. Superior Court involved the application for a writ of review to annul an order of the court below adjudging petitioner guilty of contempt for the disobedience of its judgment. It was held that the appeal in the original action operated as a supersedeas against the judgment and that since said petitioners did nothing except to restore the property to the condition that existed at the time said judgment was rendered, there was no contempt on their part and the order adjudging them guilty was annulled on certiorari.

So, in Daly v. Ruddell, 129 Cal. 300, [61 Pac. 1080], it was held that a supersedeas would issue to restrain the lower court from taking any action to enforce a judgment in reference to the laying of a pipe-line where there was an appeal from said judgment pending in the supreme court.

We think it reasonably certain, upon principle and under the foregoing and other authorities, that this is a proper case for certiorari and the demurrer is overruled and the judgment of the lower court is set aside and annulled.

Hart, J., and Chipman, P. J., concurred.

[Sac. No. 1961. In Bank.-March 5, 1912.]

J. F. BOLING, Respondent, v. THOMAS ALTON, Appellant.

APPEAL NOTICE OF MUST BE GIVEN.—An appeal can only be taken by filing with the clerk of the court, in the manner required by section 940 or section 941b of the Code of Civil Procedure, a notice "stating the appeal" or stating the fact that the party giving it does appeal from the judgment, order, or decree, or some specific part thereof. ID.-NOTICE TO CLERK TO PREPARE TRANSCRIPT NOT NOTICE OF APPEAL. -Section 953a of the Code of Civil Procedure merely provides a substitute for a bill of exceptions, and a notice to the clerk, in literal compliance with that section, which erroneously states that the party giving it has taken an appeal, and requests the clerk to prepare a transcript of the evidence and proceedings had on the trial, cannot be construed as the notice of appeal required to be given by sections 940 or 941b of that code.

MOTION to dismiss an appeal purporting to have been taken from a judgment of the Superior Court of Madera County. W. M. Conley, Judge.

The facts are stated in the opinion of the court.

Everts & Ewing, for Appellant.

George Cosgrove, and L. L. Cory, for Respondent.

SHAW, J.-The plaintiff moves to dismiss the so-called appeal on the ground that no notice of appeal has been given and that, consequently, no appeal has been taken.

Section 940 of the Code of Civil Procedure declares that "An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice upon the adverse party or his attorney." The defendant has not filed any notice "stating the appeal" from any judgment or order or any part thereof, or any paper purporting to be a notice of appeal under this section.

Section 941b, prescribing the only other mode of appeal, declares that any person having the right of appeal from a judgment, order, or decree "may appeal therefrom by filing