122 Cal. 56 | Cal. | 1898
Motion for a writ of supersedeas. A motion heretofore made to dismiss the appeal in this cause, upon the ground that the order appealed from is not appealable, was continued until the hearing of the appeal upon its merits, for the reason that the motion could not he determined without an examination into the merits of the appeal. (Hale etc. Min. Co. v. Fox, 120 Cal. 261.) Thereafter, upon the superior court proceeding to enforce the order appealed from, the present motion for a supersedeas was made in behalf of the appellants, and was resisted at the hearing upon the ground that the order is not appealable, thus presenting the same question whose hearing had been continued
This question cannot he determined by a mere inspection of the order appealed from, hut, as was held upon the former motion, involves the merits of the order and a judicial consideration of the facts and averments upon which the order was made. It
The application for the writ is granted.