, 1892-05-30
@ANAA AASAAy aAAu
on appeal.


ne superior court of the
s-4IrUed oUates in Savannah VS.. Jessup, los
United States 563.
In Gumble VS.. Pitkin, 113, United States
543, in a similar case, it is held that the
judgment distributing the proceeds Of the
sale Of property is final order.
See also Coykendall VS.. Way, 20 Mimi,
162.
American and English Enc. of Law, D.
GIT, and cases cited in note 2.
The judgment of the court having been
appealed from the superior court had no
jurisdiction over said judgment.
See Black on Judgment, vol. 1, sec. 243.
This proposition, we think, will not be
seriously disputed; but we gather from the
answer of the Judge that his view of the
law is that the suficiency of the bond is a
matter to be determined by him. With
this view of the law we cannot concur.
The supreme court only has Jurisdiction to
pass upon the questions affecting the valid
ity or suficiency of the appeal. Section 20
of chapter CXLVI. of the laws of 1891, a
chapter in relation to appeals to the su-
preme court, especially provides the man
ner and court in which this question shall
be presented. 1t provides that ''if the re-
spOndent believes the bond defective, or
the suretles insufficient, he may move the
supreme court on ten days written notice
to appellant to discharge the bond; and if
the court find the sureties insufficient or
the bond substantially defective, an order
shall be made discharging such bond, un-
less good and sufficient bond with suffici-
ent sureties be executed before a dav to be
fixed and specified in the order. On the
filing of a certified copy of the order in the
Office Of the clerk of the court from which
the appeal was taken, execution and other
proceedings for enforcing the judgment or
order may be taken, if new and good and
sufficient bond is not filed therein bv
the day specified" Thus it seems
plain from the specific provisions
of the statute, that it is only the supreme
court that can pronounce the sufficiency or
insuthciency Of the bond, and that no pro-
ceedings looking to the enforcement can be
taken after the appeal and filing of stay
bond, excepting upon the failure of the ap-
pellant to comply with the order of the
supreme court. In this case the notice of
appeal had been given, the amount of the
stay bond had been fixed by the judge, and
the bond had been given for the amount so
fixed, and had been approved by the clerk
and filed. No objection has been raised in
this court to the sufficiency of the bond.
and the court below has no right TO con-
slider any motion concerning its sufficiency,
or to entertain or consider any any appli-
cation to enforce the judgment appealed
from. The result of the threatened action
of the court would be to deprive the rela-
tors of the fruits of their appeal, and to
render the appeal nugatory, and under the
authority vested in this court by Article
", section 4, Of the constitution of the
state of Washington it has the power in aid
Of its appellate jurisdiction to prohibit a
superior court from exceeding its jUrisdic-
tion in such a matter.
1t appearing, therefore, that the respond
ent has threatened to act in excess of his
jurisdiction to the extent of affecting relat-
Ors' right of appeal, and it further ap-
pearing that the relators have
no other speedp, adequate or
sufficient remedy the temporary writ
will issue, and it is SO ordered. The tenn
porary writ having also issued inadYer-
tently to W. F. Fennlmore, as clerk of
said court, he will be discharged
DUNBAR, ]
We concur: Scott, J; Hoyt, J.
dissent. The answer Of Judge Sachs,
was, in my judgment, full and sufficient.
1t should have been accepted for what it
said, and no resort should have been had
to construction to resolve it into an evasive
denial. STILES, ].