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received in New York about this cotton, and the cotton was bought and sold according to the order and report got back to Los Angeles and given to the plaintiff. Upon suggestion of defendants' attorney that he could put the evidence in the form of an affidavit, the court stated: "It is not necessary. I am assuming every word you say to be true, and no affidavit is necessary; but I say, assuming all that you have said to be correct, I do not see any reason for a continuance." The following also occurred: The Court: "But you don't claim that this man ever owned any cotton in his life, or put up one cent of money as the purchase price of the cotton?" Defendants' attorney: "It does not make any difference whether he ever owned any cotton in his life or not. The court has stated that it is perfectly legal to make a contract to sell something he hasn't got." Thereupon, the continuance having been denied, the defendants introduced the testimony of several witnesses. One of them, the witness Harris, manager of the office of defendants, referred to the cotton deals as follows: "Two or three days after I came to Los Angeles [which would be two or three days after November 1, 1912], I asked Mr. Hartnett for some more money to protect us on some cotton that we were carrying for him; he told me he wouldn't be able to take care of it at that time, and we bought in five hundred bales, I think, November 6th, and I told him we would put a stop loss order on the remaining five hundred bales at 1215. I told him it would be bought in when it reached 1215. He said if it would go up there, it would have to be closed out, if it reached that point before he heard from the east. He made no objections to my closing it out. That is one of the two cotton transactions I spoke of before. The other one is the one we bought in the day I first spoke to him about margin, because he said he didn't have any money, and he would lighten up his load by buying in half his commitments, which was five hundred bales. These two days were about five days apart, I think. The day he told me we had better lighten up his load by buying five hundred, I entered an order to buy five hundred bales January cotton at the market. It was bought. The other time there was an order entered with our New York correspondent to buy if it reached a certain point. That was bought too at 1215." Defendants made no further attempt than as above shown to prove the good faith and reality of their transactions with plaintiff.

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Let the statements made by defendants' attorney be treated as a substitute for an affidavit; they nevertheless were not sufficient to require that the court grant a continuance. It was not stated that Mr. Marshall could or would testify to the facts referred to by the attorney; nor that other witnesses upon whom the defendants must rely were not within call on the day of the trial. For aught that appears, the defendants themselves were then in court or at their office in Los Angeles. It may be that books, contracts, and other documents were in the hands of the defendants which, together with testimony of defendants or of their bookkeepers and other agents in the city where the case was on trial, would have proved all of the facts covered by the statement made in connection with the application for a continuance. Moreover, the allegations of fact introduced into the case by the amendment of the complaint at the day of the trial were all of evidentiary matter which would have been provable in the case without such allegations. This was an action for the recovery of personal property wherein the plaintiff had alleged all the facts necessary to a complaint in that kind of an action, including the facts of ownership by the plaintiff and his right to immediate possession and the wrongful possession by the defendants, the demand for a return of the property and refusal thereof. The defendants were fully acquainted with the facts upon which the determination of the case must depend and adequately warned of the nature of the plaintiff's claims. Our conclusion is that the refusal of a continuance under the circumstances shown did not constitute an abuse of the discretion vested in the court as to that matter.

In addition to the foregoing matters directly involved in the appeals herein, we are required to consider a motion presented by counsel for appellants whereby they ask for an order staying all proceedings in the action on the ground that since the rendition of the judgment appealed from, and since the time of the appeal, the defendants have been duly discharged in bankruptcy. The motion is accompanied by a certified copy of an order duly made in the district court of the United States for the Northern District of California, discharging the defendants from all debts and claims provable under the acts of Congress relating to bankruptcy, and which existed on the seventh day of November, 1914, when the petition for adjudication of bankruptcy against them was filed; with the usual

exceptions, none of which require attention at this time. Respondent in reply to the motion shows that the appeal from the judgment herein was taken and a stay bond filed by appellants on the sixteenth day of July, 1913, which was about sixteen months prior to the commencement of the bankruptcy proceedings. That an undertaking was given as required for a stay of proceedings under section 943 of the Code of Civil Procedure, and was conditioned that the defendants will obey the orders of the appellate court upon the said appeal. Respondent concedes that this court may appropriately make an order perpetually staying execution as against the appellants themselves; but insists that he is entitled to an affirmance of the judgment in order that he may prosecute his rights under the bond. That he is so entitled, and that an action may be maintained upon such bond, we do not doubt.

Regardless of the suggestion thus made with respect to the existence of a stay bond, we also think that appellants are not on this motion entitled to anything more than is thus conceded to them by counsel for respondent. The principal object of the judgment was to enforce the plaintiff's right to have certain personal property restored to his possession. If that property remains in the possession or under the control of the defendants, it may be redelivered to the plaintiff, in which event the alternative money judgment would be of no consequence. We are not aware of anything in the bankruptcy proceedings which would prevent such return of his property by the defendants to the plaintiff. The respondent is entitled to a determination of this appeal, so that if the judgment be affirmed he may recover that property; and since the condition of the bond was that the defendants would obey the order of this court upon the appeal (which upon an affirmance of the judgment would in substance be an order for the return of the property), we see no reason why the respondent is not equally entitled to a determination of the appeal so that if the judgment be affirmed he may assert his rights with respect to that bond. All the protection to which the appellants are entitled by reason of a discharge in bankruptcy will be obtained by them under an order perpetually staying proceedings by execution or otherwise, against them, to realize upon the alternative money judgment which was rendered against them.

The order denying defendants' motion for a new trial is affirmed. The judgment is modified in that portion thereof providing for the amount to be recovered in case a delivery or return of the property cannot be had, by substituting for the sum of $1,287.50 the sum of $1,200; and for the sum of $1,270 the sum of $1,250; and for the sum of $1,460 the sum of $1,398.75; and for the aggregate sum of $5,017.50 the sum of $4,848.75. As thus amended, the judgment is affirmed; without prejudice to the right of appellants to apply to the superior court for an order perpetually staying execution as against them, upon those parts of the judgment which provide for recovery by the plaintiff against the defendants of any sum or sums of money in case a delivery or return of the described personal property or any thereof cannot be had.

James, J., and Shaw, J., concurred.

[Civ. No. 1595. Third Appellate District.-October 14, 1916.] E. F. RICH et al., Petitioners, v. SUPERIOR COURT OF MENDOCINO COUNTY et al., Respondents.

JUSTICE'S COURT-APPEAL-SUFFICIENCY OF UNDERTAKING.-An undertaking on appeal from the justice's court from a judgment for the payment of money in a sum equal to twice the amount of the judgment and costs (an amount in excess of one hundred dollars), and conditioned that if proceedings be stayed the appellant will pay the amount of the judgment appealed from, and all costs if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the superior court, is sufficient, under section 978 of the Code of Civil Procedure, as an undertaking for the payment of costs on the appeal and to give the superior court jurisdiction of the appeal, regardless of its sufficiency as an undertaking to stay execution. ID. DISMISSAL OF APPEAL-INSUFFICIENCY OF UNDERTAKING JURISDICTION OF SUPERIOR COURT.-The superior court has jurisdiction to hear and determine a motion to dismiss an appeal taken thereto from the justice's court on the ground that a sufficient undertaking had not been filed.

81 Cal. App.—44

ID.-JURISDICTION-MEANING OF RULE.-The rule that when a court once obtains jurisdiction of the subject matter of an action, it then has jurisdiction to decide a question arising therein erroneously as well as correctly, has no application to a case where the very question to be determined is whether the court has the legal authority to hear and determine the matter before it. The rule simply means that when the court has jurisdiction of the subject matter of the action, and makes error during the course of the trial or in its final decision, such error is correctible, not through a jurisdictional writ, but solely by appeal.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to secure an annulment of an order dismissing a justice's court appeal.

The facts are stated in the opinion of the court.

Charles Kasch, for Petitioners.

Frank W. Taft, for Respondents.

HART, J.-One Harvey Carlton, on the twenty-first day of June, 1916, recovered judgment against the petitioners in the justice's court of Little Lake Township, in the county of Mendocino, for the sum of $115.35, together with costs of suit, taxed at $8.75. Thereafter, and within the time allowed by law, the petitioners appealed from said judgment to the superior court, in and for the county of Mendocino, said appeal being upon questions of both law and fact. The petitioners, in due time, filed the following undertaking:

"Whereas, on the 21st day of June, A. D. 1916, a judgment was entered in said justice's court against defendant in favor of plaintiff, for one hundred and fifteen and 35/100 dollars and costs.

"Defendant has appealed from said judgment to the Superior Court of the County of Mendocino; and he wants proceedings stayed pending appeal. Now the undersigned jointly and severally undertake in the sum of two hundred and forty-eight and 70/100 dollars, that if proceedings be stayed appellant will pay the amount of the judgment appealed from, and will pay all costs if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that

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