*1 Nаtl. Rep. 95]; Bank, 42 First Weckler v. Md. Am. [20 Bank v. Natl. 600; Bank First Natl. Bank, v. Natl. Exch. 39 Md. meant, 679].) By Bank, Exch. Ed. this is U. L. S. in com- to stocks not that a national bank not take title claim, them promise disputed or take or doubtful satisfy- protecting or pledge, purchase with a view to them taking in ing pledge. The each a claim secured of mak- merely to the business such cases would be incidental organized. pro- What is ing loans, etc., for which bank is investment, or the speculation or purchase is the hibited follow that where purchase commission. It would sale it, duty its would bought pledged to bank had stock national could, proper dispose as soon as a sale of such stock fact, in case was evidencе advantage, be made. In this there had criticised the defendant national bank examiners that the only proper pur- retaining long: The stock so bank for bank realize taking the stock was to enable pose of regarded may properly be resale of such stock loan. The its A process of collection. sale steps taken as one of the part was, therefore, think, we these circumstances under language use the bank, or to ordinary business of the management ‘necessary in the an act by-laws, it-was powers such, it within the bank.’ As business of the cashier. denying are re- a new trial judgment and the
“The versed.” March 5, In Bank. 1912.] No. 1968.
[Sac. OF COURT al., Petitioners, v. SUPERIOR KARRY et A. T. Judge PLUMMER, A. COUNTY, and J. JOAQUIN SAN thereof, Respondents. — — in Attachment for Costs Bond Courts Justices’
Jurisdiction Appeal Judgment. Pending from Bond to Enforce Suit—Action hundred three less than in an amount for costs —Where in an action defendant in favor is rendered dollars issued, an had been an attachment duly perfected had been supreme court therefrom justice’s stayed, a execution of KaBBY COUBT. V. SlJPEBIOB appeal, have superior court payment of costs given to secure the bond action to enforce appeal from the notwithstanding the suit, in the attachment and undetermined. still therein op op Appeal op Depense—Error Id.—Pendency in Exercise Matter pendency of the Jurisdiction—Certiorari.—The *2 were fоr costs in the attachment suit stay of the justice’s did court and action in the mere matters of defense to the jurisdiction superior court of jurisdiction, it of nor divest by and courts in the determina- appeal, error committed such matters, although they were shown legal effect of tion of the those was error by trial, on the without conflict evidence adduced of reviewed on certiorari. jurisdiction exercise that cannot be Eppect court Id.-—Erroneous Decision Does not Jurisdiction.—A only jurisdiction wrongly correctly, as decide well remedy party aggrieved by merely a is such decision erroneous by statutory relating to motions provisions be afforded our appeals. remedy for given, a new trial and If no the action such of jurisdiction the trial within court its conclusive. Certiorari, APPLICATION for to review a Writ Superior County, originally Joaquin Court of San appel- commenced district for third court district, late de- transferred court after by cision that court.
The opinion facts are stated of the court. Dodge,
W.R. for Petitioners. Webster, Blewett, Respondents. & for Webster certiorari, orig- proceeding ANGELLOTTI, J. This is inally third in the for the commenced district court district, by after that and transferred to this court decision court. prayer of purpose proceeding, of the as stated certiorari, petition for annul in a County, and made
superior Joaquin court San justice’s therein on an certain action county, townships in which action cоurt one of the said Fieg plaintiff, herein one Fannie was the jurisdic- were The action was one within the defendants. court, being justice’s $295.75 for the sum of tion Fanny by Fieg in a certain and on account of costs incurred Gjurich begun prosecuted petitioner action theretofore damages county, superior her court of said property in said reason of on her levied attachment undertaking given for such action, being on the bond or his damages petitioner and costs and in said said justices’ courts co-petitioners, the sureties on such bond. undertakings jurisdiction con- have “in bonds or actions does payment money, if the sum claimed ditioned for the though penalty dollars, not amount to three hundred 5.) It is (Code Proc., see. subd. exceed that sum.” Civ. acquired questioned justice’s court they ap- action, that persons of the defendants in such action, peared presented therein and their defense Fanny Fieg, justice’s gave judgment in favor of court its herein, defendants plaintiff therein, petitioner regularly su- therein, appealed from such regu- action was perior Joaquin County, that the court of San appeal, and that larly superior tried gave jugment merits in favor of on the *3 sum of Fanny Fieg against petitioners for these and $145.71. jurisdic- judgment was excess
The claim that this of superior court, tion for of course it is not claimed 'the exсeeded, is jurisdiction has been certiorari will lie unless such alleged following exist, solely facts which to based on the are proceeding, may be con- purposes of this which, and for all the superior judgment of the court exist. The ceded to against Gjurich Fieg and former action ’Phis costs, Fieg $145.71. for her at in favor of said taxed Fieg suing in her money to recover was the $145.71 com- Prior to the justice’s petitioners. court action regularly Gjurich justice's action, had court mencement of the court, appeal and judgment to this such from such appealed here, conceded undetermined. and still of this appeal, that the effect by the district court as held below the court stay proceedings “all further was to from, upon the mat- appealed judgment or order upon the 946.) (Code Proc., sec. Civ. therein.” ters embraced connection, apparently one held in this respondents point giving superior court in judge of the good by the learned trial action, is that as justice’s subsequent given appeal to by Gjurich there was no bond on his stay was effected costs, of the no enforcement (Code 942.) We not deem appeal. Proc., see. do Civ. important here, assume that question this consider quotation above effect of the was as stated There are from section 946 of Procedure. the Code Civil question on the of said perhaps other facts that are material attachment, Pieg’s present right damages by of the reason differing they present legal question material but here costs, as the question presented relative nothing her on account complained of here awarded damages, unnecessary forth such facts. such it is to set juris- very show no excess of It is clear that the facts recited part superior disposition in its diction on the justice’s by petitioners it. Grant- appealed court action nothing ing facts, more than everything claimed as to the jus- jurisdiction error in is shown. The the exercise of its jurisdiction of this class of court, seen, tice’s as we have hundred actions, less three where the amount claimed is than brought dollars. The from the therein It is court. cáse within the alleged complaint were not not claimed that the facts though is not action, even sufficient to state cause alleged by jurisdiction. essential to matters defense, all forth them in were matters of to be set were,. passed upon by court, trial to be perceived between such defenses No material difference recovery money, an action for other defenses might made, for instance as a defense that alleged executed, plaintiff was bond had not been or that judgment in It was estopped a former the same matter. jurisdiction, superior court, in the of its for the exercise alleged defense, determine the effect of the matters *4 Any give according to its determination. error way mistaking facts, or have committed judg- legal facts, result its effect admitted with? money not awarded to which she should ment juris- recovered, simply in exercise of its- have error jurisdiction said, court to diction. As has often been a has remedy correctly, only wrongly as as decide well merely erroneous decision is such party aggrieved a Kabby Superiob Coubt. mo- relating to statutory provisions be afforded our given, remedy be If no such appeals. tions for a new trial conclusive. jurisdiction is its within the aсtion of the trial court adduced in evidence was no conflict The fact that there held, and been never It has the trial can make no difference. relative elementary principles can held if of course never merits judgment on the that a jurisdiction kept mind, to are is, for that reason facts totally admitted at with the variance giving it. of the court jurisdiction alone, in excess syllabus Mon- The simply erroneous. judgment is Such a matters correctly which states Bush, real 46 Cal. n is as here. principle applicable decided, illustrates judgment for demand i rendition of the follows “The commenced, not an excess the action was was not due when jurisdiction.” jurisdiction, but thе exercise error to annul a writ of certiorari application there was for a justice’s court from a county appeal ground stated writ was on the judgment, and the denied unnecessary cite other entirely syllabus. We deem it to the said. Decisions support of what we have authorities having juris- a court compel mandamus will lie to effect that hearing where proceed thereof diction of an with notwithstanding jurisdiction, the admitted facts show such give facts do not that such admitted that such court has held dis- will lie to annul an jurisdiction, or that certiorari missing circumstances, prohibition or that an under such hearing anof with the prevent proceeding will lie to a сourt no jurisdic- that it has the admitted facts show where contrary, are tion, notwithstanding its own decision to the can- a court simply mean that point at all. Such decisions give jurisdiction or divest itself itself facts. legal of admitted decision as to the effect erroneous hand of the court staying the And, course, decisions appeal has been where an order, or order, stays operation of such taken that .the thereof, are not proceeding the enforcement. with apparent mistake point. We have no such case here. in con- appeal in this matter court of the learned district way being connected in such sidering actions as the twо legal proceeding justice action in effect make the manner judgment same enforce former *5 Superior Court., same superior extent that a motion the court in former the case for the issuance execution of an would have been such proceeding. a any jurisdiction question So far as is con- cerned, entirely separate the two eases were and The distinct. proceedings in the first case were available to as case, weight matters of defense in the second to be therein the trial court deemed them entitled to under the operate law. could But to divest that court of jurisdiction subject-matter that it had over of the action persons the defendants. here We have no different principle case one we if would have the action had promissory been one on ap- note hundred dollars, one pealed superior court, only to and not the answer evidence, findings uncontradicted but also showed fully paid, superior note had been nevertheless given judgment had in favor of plaintiff for the full would, of the note. amount Such course, erroneous, but there have been jurisdiction, would no excess of aggrieved party remedy and the would have been without by way A judgment of certiorari. fails to accord party legal rights course, is, always regretted. his every point bеyond must be a proceeding But there permit controversy further the law will to the merits In actions of character of the one case. under con- where the claimed is than sideration, amount less three hun- jurisdiction,is in dollars, appellate the final superior dred if of that court. Even merits case, a question clearly we decide, do not erroneous conclusive, being no excess final made appear. court is affirmed. Henshaw, J., Lorigan, J., and J., Melvin,
Shaw, J., con- curred.
Rehearing denied. denying from the J., rehearing, dissented order Beatty, O. April following opinion thereon on 4, 1912:— and filed the from the denying BEATTY, C. J. I dissent a re- from the doctrine of this cause hearing decision. Kabby point juris- decided the action was one within the justices’ diction of therefore, court, and of course within appellate jurisdiction superior court, final judgment though rights erroneous and subversive petitioner entirely him hy secured his this court *6 the is, short, impotence irremediable. a of on confession part of this court an appealing litigant to secure to fruits the a appeal. argument of support successful The of this con- clearly clusion seems to be that no matter how and conclu- sively may by it appear, fact, to made as matter of way defense, justice’s action that the commenced a court of rights prevails, will if it defeat of the the defendant invоlved pending supreme in his to court from the superior justice of the peace court—the nevertheless jurisdiction to render a judgment, and the superior it, accomplish indirectly to affirm and thus what superior court aby proceeding (as could not do by direct execution) filing issuance of after sufficient undertak- ing stay proceedings. opinion For here the of the court Gjurieh Fieg concedes—and the fact is—that in the case of undertaking stay proceedings a pending ap- sufficient peal had before filed the action been
(Gjurich’s sureties) had been commenced.
The which compared by way instance with this of case support argument disregard is the of plea of another рending plea another court. is a But this disregarded jurisdiction without an excess of where the superior other action is not in a of exclusive jurisdiction. When a on appeal cause is court even superior jurisdiction any court is ques- without decide directly indirectly tion appeal, involved and if there proceedings part of can judgment. is a it enforce no of its justice peace superior of Can do what the court cannot action be made final and do and his conclusive the endorse- If superior court? it is ment of the can a result not con- templated the framers of our ex- constitution when justices powers provided peaсe that of pressly jurisdiction case trench “not should except justices of record that said courts shall have several jurisdiction with in” courts certain concurrent entry and detainer and to enforce certain forcible cases 11.) personal (Constitution, VI, see. property. liens art. Gjurich’s record—by reason of court is a court of every jurisdiction question in acquired exclusive including right enforce the ease, of the defendant to peace justice of it seems that a for costs. But his question, and that forestall our judgment can though confessedly superior court, judgment afSrmed remediless, it is excess of erroneous, because part of peаce less justice of the enforce for a dollars, while validity three hundred than in amount question pending prefer, this court. I judgment is a ap- opposite district court of however, the conclusion peal. following opinion court of the district August 30, 1911, district, appellate rendered the third approved were conclusions of which to and the
referred Beatty, dissenting C. J.:— opinion *7 proceeding in This isa certiorari and BURNETT, J. following April 1909, in grows 22, situation: On out of the Joaquin, an action was county of the of San superior the court against Gjurich, herein, brought by petitioners one of the E. Fieg of dollars Fanny recover sum five thousand one the of alleged Thereupon a writ attachment was services. for рersonal property certain real and of and levied issued undertaking for said attach- in the action. the defendant by Karry Wendel, A. and Herman T. ment executed was jointly provided that “do and herein, and dollars, in of four and the sum hundred severally undertake if effect, that defendant recover the promise to the pay will all costs action, plaintiff the said in said damag&s all and which he awarded to the defendant attachment, exceeding said the by of sum reason sustain and, action was tried on June four hundred dollars.” of Fieg in of the judgment rendered favor defendant 1910, $145.71; 14th, on following, of June sum costs for judgment was on from said and appeal of notice undertaking his Gjurich appeal filed with day said same purpose continuing of court. For force clerk of during pendency said appeal, attachment the said undertaking in due Gjurich, 15, 1910, filed said on June of the Code according section 946 form, provisions dollars, being Procedure, in the of ten thousand of Civil sum by Gjurich, to claimed said double the amount the debt damages Pieg of all costs and payment to said secure On attachment. might reason said which she sustain day aforesaid action July, the first while Pieg brought said supreme court, Township, justice an action O’Neal herein, county, against petitioners to recover said costs The defend- damages claimed reason said attachment. pleaded pendency in abatement the appeared ants giving of court and the said undertak- justice in force. The ing to the attachment continue prayed therein as for. The awarded thereupon appealed to the court of said defendants and, Plummer, judg- trial J. Á. county after a Hon. before Pieg, against plaintiff, in favor of said rendered defendants, petitioners herein, $145.71, for the said recovered in the first amount of mentioned the order to show cause issued this As return to action. copy was filed and also a certified of the court, a demurrer sufficiently ample below, pur- proceedings the court of reference, Por convenience we shall poses of decision. original brought designate by Gjurich action hereafter brought by Pieg Pieg one the action as number damages against petitioners here to recover her costs two. number sequence is, seemingly, question in order of what
The first of the num effect was the provisions this, in of the one? As to view statute ber appellate courts, be, appar there1can decisions 946 of the of doubt. Section Code Civil ently, kind *8 appeal perfected an provides that “Whenever as Procedure chapter, stays of this preceding it all in the sections provided upon judgment in the court below the or proceedings further from, upоn or the matters therein embraced appealed order upon any proceed other matter below . but the . . appealed affected’ the order and not in embraced not continue force attach appeal does an An . . . from. undertaking and filed on part executed be an ment unless Cal.—10 CLXII appellant sureties, the amount hy
of the at two in double least pay appellant will all him, of the debt claimed that by' damages respondent may sustain costs and which the attachment, of the the order of the below reason case days entry sustained; unless, be and within five after the perfected.” order be Section appeаled appeal from such is, goes, 949 of the code it to the same effect same as far as nine provided and is as “In not for in sections follows: cases forty-three, nine forty-two, hundred and hundred nine forty-four, forty-five, hundred hundred and nine making undertaking perfection appeal giving of an or deposit forty-one, mentioned section nine hundred stays any judgment proceedings all the court below from, appealed except or order where it directs the sale perishable property.” disputed that the here is not perfected required by the statute. give simple, unequivocal are
If we effect to the terms law, exceptions have a within some of unlеss we ease necessarily be mentioned, step follows that could taken it impair legally carry to enforce or into execution or to or during modify respect judgment pendency said any from apparent, indeed, an examination of appeal. It is relating exceptions, they foregoing provisions to the that fact, bar. In there be application have no to the case at can germane question pretense is no of them except possibly us section of thé Code Civil before “If from a Procedure, provides that be directing payment money, it ment or does order judgment or unless a execution of written undertaking part apрellant by executed two are bound sureties, to the effect double or more order,” etc. But a amount named judgment directing payment for costs money sense the statute. The under nothing take essentially and, review be allowed her costs. thereto, that defendant incident foregoing sought, assurance we If additional find at hand. in the decisions Holmes, was held Snow
In mortgage of foreclosure of that, on undertaking in the sum of property, three personal *9 Karry Superior Court. v. judg- stay a hundred dollars is sufficient to the execution appeal. ment
In Schedel, 241, 334], re involved the effect Pac. [10 appeal general from a decree distribution rule held “sections 942 аpply and it was declared that required to 945, apply appellants per- who inclusive, are judgment appealed form or from. the directions of the language.” This is manifest from their 617], it Superior Court, 31, In Pennie v. 89 Cal. Pac. [26 that, on from adminis- requiring was held an order claimant, pay family trator to a to a certain an un- allowance stayed dertaking pro- dollars the sum three hudred all directing ceedings and that an order made after said jurisdic- payment beyond is administrator to make the tion of the court and annulled cer- should tiorari.
So, Chabot, 1070], in Powers Pac. it was v. 93 Cal. [28 stay that, required since bond is in addi- held no execution judgment tion to the bond for usual costs foreclоsing given upon mortgage, appeal, a chattel a bond such judgment deficiency, statutory secure a for bond and is without consideration and void.
In etc., Society, McCallion 98 Cal. Hibernia, judgment portion is said: “As to awarding stay-bond re- against appellants, a was not cpsts quired to restrain the of an execution to recover such issuance object. appeal-bond judg- real effected that costs. The money, plaintiffs case are the owners of the is that being required by as to stay-bond the statute such a and no stay-bond no to the costs. judgment, demanded to the defendant were incidental costs taxed execution, inseparably connectеd ment, and to a judgment for not the direct- A costs is therewith. If ing money contemplated by section 942. payment of stay-bond required almost fact, a would be were only re- contrary, it is every case, when to the conceivable 942 to 945 of the sections quired in the four eases covered code.” provided exceptions apparent even the
It must anomalous situation. It seems present the code somewhat presuppos- based peculiar that an rather execution ing really permitted is a should be before there “A proper of the term. sense parties rights the final determination of in an (Code litiga proceeding” 577) Proc., and “until Civ. see. finality judg tion on ended, the merits is there is *10 ment, rights determination of the the sense final parties, although may purpose it have become final for the Co., from it.” American I. Gillmore v. C. to, exceptional Pac. In the cases how referred ever, signifies by “judgment” the the trial the determination rights not, parties, court of the but those cases should obviously, enlarged beyond be of the statute. the terms inquiry is, complaint
The next What was basis upon or the in cause of action number two by recovery? respondent relied for It is contended that undertaking brought upon action was in attachment judgment brought that the suit on in action num was not undertaking is ber one. In sense be that said it must true undertaking, a con the basis for the action. constituted conditions. payment money tract for the under certain obligation it im anything But is be that the as clear as can undertaking posed upon was conditional the sureties on that one, contingent upon happening existence certain only pay “if the de facts. The sureties bound themselves recovery of judgment action.” recover said Said fendant is, therefore, an essential number one was and recovery in number two. element the cause of action lia agreed to fix was the circumstance instead of condi bility of and make it absolute the sureties before there is “A commenced cannot be tional. suit bond Ceas, 143 breach the bond.” Cookv. recovery of may said, probably, that the While it not be 65]. of action one the sole cause is action number could no cause of action two, must be conceded that number it judgment had an averment been without that ‘.have stated maintained not be recovered, said action could been rendered for defendant judgment proving without that principle better estab no one. But there is number action strict letter of may stand than that sureties lished strictly construed undertaking its must be terms their statutory bond, reason- Indeed, since favor. their Harry 1912,] March, which are defined used therein
able to hold that the terms statutory sense. Therefore the used in statute were that premature for the reason sureties one, yet number has as in action' been rendered “judgment” being the action still rights of meaning final referred to determination parties. may But, pay “all that again, promised costs sureties damages may which he be awarded to the defendant and all What does the term sustain reason said attachment.” pre- with the comprehend? “costs” in connection Considered recovery judgment, ceding it can clause in reference to pay all simply mean will costs that sureties judgment in action awarded to the defendant therein judgment for words, number other whatever costs one—in By therefore, if judgment, rendered. ren- liability dered, is fact of fixed the extent of their their liability clearly Thus it disclosed determined.
judgment in action one is for action number number the basis *11 beyond controversy But two. it is settled that “an action will Feeney upon judgment lie until it become final.” v. has Hinckley, 134 Pac. 468, Cal. “Until that time [66 580]: arrived, of action no cause has accrued.” Sherwood, Hills v. 33 474. In 143 Ceas, Cal. Cook v. Cal. great Pac. it is said: “It has been here in a held
[77 long great variety an action or number and of cases that so proceeding judgment or is in this sense may from which be taken cannot be has been or any made the basis of new action.” only possible application
There one of the term is other undertaking it “costs” as in said and that is to refer used expense may by incurred reason the attachment. that be But, ground construction, apparent under said is that no by exists, action since still force virtue the attachment is There be no said ten-thousand-dollar-bond. could damages undertaking pay breach the costs caused by levy property while is of the writ of attachment subject lawfully presume to said writ. still We will disputed. be it, foregoing discussion, as we is result of the conceive judgment upon the trial court awarded cause action may
that had not arisen and that never arise reason of disposition of said court. hereafter may upheld peti- respondents also that if should be be stated although be required pay money, tioners will number one subsequently determined defendant Whereas, if the action not entitled to for costs. is annulled, plaintiff number two the court below is abundantly protected by ten-thousand-dollar-bond. the said given hy the trial
No doubt this was
consideration
learned
constrained
judge
appears
opinion that he felt
but it
from his
Indemnity Co.,
App.
Bailey
Aetna
the decision
that case
opinion, however,
In our
416].
brought
this;
an action was
easily distinguishable from
there
belonging
upon property
and a writ of attachment was levied
given by
thereupon
A
defendant
to the defendant.
bond was
accordingly re-
property
it was
for the releаse of said
and'
Judgment
obtained
levy.
lieved from the lien of said
A
execution.
plaintiff
was no
in the action
there
unsatis-
and returned
thereupon
issued
writ
execution was
neces-
therefore, which were
very
existed,
conditions
fied.
given
bond
sary
liability
on the
to fix the
of the sureties
against them was
attachment,
and a
release
by reference to sections
properly upheld. This made clear
The last
Procedure.
552, 554, and 555 of the Code Civil
giving
upon the
provide
release of the attachment
two
for the
terms of said under-
undertaking
prescribe the
of an
re-
“If the
taking ;
provides
execution
and section
part,
or in
unsatisfied, in
turned
whole
undertaking
pursuant to
hun-
sectiоn
prosecute
five
he
fifty-five, or
forty
amd
hundred
dred
or section five
of an execu-
upon the return
cases,
may proceed,
in other
original
seen, no execution
Here, as we have
tion.”
liability of
legally, and
could be
judgment was issued or
*12
contingent and not absolute.
sureties is
is
it
remedy. Herein
remaining
is as to the
question
in excess
was committed
a mere error
at most
claimed that
by certiorari.
reached
it cannot be
jurisdiction and that
of
scope
function and
unnecessary to,discuss We
deem
ample consideration
subject has received
writ, of this
to
may profitably be had
Reference
courts.
from various
decisions,
others, of our
court:
among
following
Superior
March,
295
1912,]
v.
County
County
Reynolds
Monreal v.
Judge,
79;
46 Cal.
v.
241,
Schedel,
Joaquin,
604;
Court
San
47
In re
69 Cal.
Cal.
;
31,
Pac.
Superior Court,
Pac.
v.
89 Cal.
Pennie
[10
[26
334]
;
119,
Pac.
617]; Buckley
Superior Court, 96
v.
Cal.
8]
[31
543,
156]; Hol
Superior Court,
Stewart
Pac.
v.
100 Cal.
[35
589,
936];
Superior
brook
Pac.
Court,
v.
106 Cal.
[39
580];
Court,
106,
Schwartz
Pac.
Superior
v.
111 Cal.
[43
691,
McClatchy
Court,
413,
A.
v.
119
L. R.
Cal.
[39
1080];
696]; Daly
300,
Pac.
Pac.
Ruddell, 129
Cal.
[61
Stumpf
Supervisors,
Am. St.
Board
Rep. 350,
It is here if though, that the situation will not understood, authority the writ issuance of authority recognized as con- hard find and will be sonant principles with well-established of law. essentially A somewhat,
To reiterate the case is this: taken ment was An rendered a certain action. upon judgment. which, ipso stayed proceedings facto, all brought, based said Nevertheless, another action was make attempt to and which an constituted effect carry execution. operative аnd to into trial prosecution permitted proceeding of this court had principle if the court. It would be no different satisfy said issued and allowed execution to be levied looking judgment. proceedings all Since plain stayed are towards its were and enforcement any legal authority— provisions the.statute, no proceeding words, any jurisdiction—to entertain other litigation while that litigation appropriate the fruits of and undetermined. still that a decided Schedel, In re supersedeas proceedings issue to should writ *13 Harry Superior v. [162
decree of distribution of the estate of a deceased testator pending by legatee. an super- therefrom a The writ of auxiliаry designed supersede sedeas is “an process judgment up brought enforcement of the court below (Williams Bruffy, a writ error for v. U. review.” L. 135].) S. Ed. It is issued because the want judgment. stays to enforce the a threat- step towards ened execution. The effect is the same as steps already annulment certiorari of that have been taken judgment operation for the enforcement whose has been suspended. Superior Court, already seen,
In Pennie v. as we have directing payment family allowancee was on certiorari. annulled application
Stewart Court involved the adjudg- of review to annul order of writ the court below ing petitioner guilty contemрt for the disobedience of its judgment. original It was that the held supersedeas against operated aas and that since nothing except did the property to restore at the the condition that existed time said contempt rendered, part there was no on their and the order guilty adjudging them annulled on certiorari. Daly
So, Ruddell, supersedeas would was held that issue to restrain the lower taking any action to enforce a in refer- laying pipe-line ence to the where there was an from said court. reasonably certain, upon principle We think and under authorities, foregoing proper and other is a ease demurrer is for certiorari overruled and the lower court set aside and annulled. Chipman, J.,P. J., and Hart, concurred.