125 Cal. 527 | Cal. | 1899
An alternative writ of mandate was issued from this court, directed to the respondent, and ordering him to admit petitioner to the use and enjoyment of the office of auditor and recorder of the county of Yuba, or to show cause why he does not do so. At the hearing upon the return it was made to appear that at the general election held in 1898 the petitioner and the respondent were opposing candidates for the office of auditor and recorder of Yuba county. In due time the board of supervisors canvassed the vote cast at the election, and
Under these facts it is seen that the legal question presented is the single one, namely: Whether an appeal from a judgment such as this operates as a supersedeas. Generally speaking, an appeal to this court, accompanied by the three-hundred-dollar undertaking, stays the execution of the judgment, excepting judgments in certain enumerated kinds of cases. As an appeal in contested election cases is accorded to either party under section 1126 of the Code of Civil Procedure, it must follow that unless the judgment which the court is authorized to enter in such a case belongs to one or another of the excepted classes, the appeal does operate to stay its enforcement. Section 949 of the Code of Civil Procedure provides that the perfecting of an appeal stays proceedings in the court below upon the judgment,
The application for the writ is therefore denied.
Temple, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.