32 Wash. 634 | Wash. | 1903
The opinion of the court was delivered hy
The complaint in this action alleges that the plaintiff is the owner and in possession of certain real
Respondent moves to dismiss the appeal for the reasons (1) that the brief fails to point out clearly or otherwise the errors complained of; (2) that the brief does not contain a sufficient statement of the case; (3) that the appellant did not, at or before or within five days after giving the notice of appeal, file with the clerk of the superior court an appeal bond to make her said appeal effectual, as prescribed by law. As to the first two propositions, the brief of appellant, though not lengthy, is clear and concise, and sufficiently states the points to be considered by this court. As to the third, it appears that appellant abandoned her first notice of appeal, and afterwards ap
“How, therefore, if the said Eliza E. King shall satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court may order or make, or order to be rendered or made, by the superior court, then this bond to be void and of no effect; otherwise to remain in full force and effect.”
While the exact language of the statute is not employed in the bond, we think the language used is sufficiently comprehensive, and covers in meaning the requirements of the statute, and that, if the appellant satisfies and performs the judgment or order appealed from, and any judgment or order which this court may order or make, or order to he rendered or made by the superior court, the respondent will receive all at the hands of the appellant which he is entitled to. It is also objected that the appeal bond, though in double the amount of the judgment and $200 added, is not conditioned as an appeal bond, but merely contains the conditions of a stay bond, and that it is ineffectual in that respect; and Hewitt v. Lonsdale, 26 Wash. 615 (67 Pac. 354), Beezley v. Sessions, 22
On the merits it is contended by the respondent — a view evidently taken by the trial court — that the owner of the property must await the determination of the issues involved in the case in which the lis pendens was filed, and that there is no provision of law for the commencement of such an action as the one presented here. The appellant contends that the action is properly brought under the provisions of § 5521, Bal. Code, which provides that any person in possession of real property may maintain a civil action against any person claiming an interest in said property, or any part thereof, or any right thereto, adverse to him, for the purpose of determining such claim. We think this statute is sufficiently comprehensive to warrant the bringing of an action of this kind, even if it should be conceded that the plaintiff did not have a common-law fight of action to remove a cloud from his title. That the filing of a Us pendens does constitute a cloud on title to real estate can scarcely be denied. It is urged by the respondent that the' Us pendens is simply a part of, or an adjunct to, the original suit, but it is a part or an adjunct
We think the complaint states a cause of action and that the court erred in sustaining the demurrer thereto. The judgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer to the complaint.
Fullerton, O. J., and Hadley, Anders and Mount, JJ., concur.