20 Wash. 592 | Wash. | 1899
The respondent brought an action to foreclose a lien upon certain sawlogs owned by the appellant, which were at the time of the commencement of this action, and are now, lying at the mouth of the Skagit river, in Skagit county. At the time of the commencement of the action, the court appointed the sheriff of Skagit county as receiver of said logs. The appointment was made on the 24th day of January, 1899. On the 26th of January the cause was tried and judgment rendered in favor of the respondent, establishing his lien, and for judgment for his claim. After the entering of the decree ordering the sale of the logs, appellant appealed the cause to this court, and has perfected said appeal by filing with the clerk of said superior court a good and sufficient stay bond fixed by the superior court. Upon the filing of the stay bond aforesaid, the appellant demanded of the court the release of the logs, but the court refused to release or discharge said logs, or permit the appellant to exercise any control over the same, or interfere with the possession thereof, and the same remain in the possession of the sheriff. The relief asked for here is a mandamus to compel the superior court to make an order directing that said logs be released from the custody and control of the sheriff, and that they be returned to the custody and control of the appellant.
This case involves the construction of chapter 132 of the Laws of 1893, p. 428 (Bal Code, §§ 5930-5949), an act providing for liens upon sawlogs, spars, piles or other timber, and upon lumber and shingles, and concerning the remedy to secure and obtain such liens, and the benefit thereof, and the manner and procedure of obtaining the same. Section 4 of said act (Bal. Gode, § 5933) provides that the liens provided for in this chapter are preferred liens and are prior to any other liens, and that no sale or
We are inclined to think, however, that the writ cannot issue in this case. The legislature has provided the remedy and has provided in terms that, when these foreclosure proceedings are commenced, the sheriff of the county shall be the receiver of the logs. This is a part of the remedy, a subject over which the legislature has absolute control, in the absence of the violation of any constitutional guaranty, a question which has not been raised in this case. The whole act shows that it was the intention of the legislature to give an absolute lien upon timber of this kind to workmen, and that that lien should be held sacred until the debt was satisfied; and we do not think it is
Appellant has cited to sustain his contention some cases from this court, among them State ex rel. Barnard v. Board of Education, 19 Wash. 8 (52 Pac. 317), where it was held that the appellate court could issue orders of supersedeas in cases not provided by statute, pending the determination of the appeal on its merits. But that doctrine was announced under the constitutional provision that the supreme court shall have power to issue all writs necessary and proper to the complete exercise of its appellate jurisdiction; and in that case it plainly appeared that the fruits of the litigation would have been lost to the relator if the writ had not issued. State ex rel. German-American, etc., Bank v. Superior Court, 12 Wash. 677 (42 Pac. 123), is also relied upon. There it was held that, under the statutes of this state, upon an appeal from an order appointing a receiver, the appellant was entitled to a stay of proceedings upon complying with the provisions therefor, the same as upon an appeal from any other order or judgment. But in that case, outside of the other questions that are discussed which take it out of the principles governing this case, the appeal was from an order appointing the receiver. In this case, it will be observed that the appeal is not from the order of the court appointing the receiver, but the appeal is from the judgment allowing the claim and establishing the lien. Superseding that appeal could only supersede the case as it ex
In Dulin v. Pacific Wood & Coal Co., 98 Cal. 304 (33 Pac. 123), it is held that a stay of proceedings only affects subsequent proceedings after judgment. The court in that case, among other things, said:
“ ‘The only effect of an appeal to a court of error, when judgment from which it is taken.’ And herein should be observed the distinction between the effect of an appeal from a judgment in staying further proceedings thereon, and its effect in depriving the judgment itself of any efficacy as evidence of the fact determined. The appeal suspends its force as a conclusive determination of the rights of the parties, but the stay of proceedings consequent upon the appeal is limited to the enforcement of the judgment itself, and does not destroy or impair its character. The purpose of the present application is not to prevent the court from taking any action to enforce its judgment, but to prevent Dulin from acting as one of the directors of the corporation. His assuming to be such director, while it may be in consequence of the judgment,, is not a proceeding upon the judgment.”
So, in this case, the action of the sheriff in holding the possession of these logs as a statutory receiver is not in pursuance of the judgment, or in pursuance either of his appointment when the complaint was filed, or of the statutory requirement.
In Collins v. Burns, 16 Colo. 7 (26 Pac. 145), it was held that an attachment which had issued prior to the
Tbe writ will be denied.
Anders, Fullerton and Keavis, JJ., concur.
Gordon, O. J., not sitting.
