28 Wash. 403 | Wash. | 1902
Tire opinion of tlie court was delivered by
— The Standard Gold Mining Company, a corporation, brought an action in the superior court of Spokane county against the relator above named, and alleged that on the 13th day of April, 1900, relator was secretary and treasurer of the plaintiff corporation, and, as. such, received Tor the use of the corporation certain books, papers, and money belonging to the corporation; that relator still retains the same in his possession; that on the 6th day of November, 1901, relator’s term as such secretary-treasurer expired, and his successor was duly elected and qualified; that, prior to the commencement of the action, demand was made of relator for the books, papers, and money, which demand was refused; that the plaintiff corporation
1. The Code; at § 6500, Bal. Code, provides:
“Any party aggrieved may appeal to the supreme court 3. Drom any order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party.”
It is conceded that the portion of the order restraining the defendant from doing any act may be reviewed here on appeal, but it is argued that that portion of the order requiring defendant to turn over the property described is interlocutory, and authorized by § 5460, Bal. Code, and therefore not appealable. The section referred to reads as follows:
“When it is admitted by the pleading or examination of a party that he has in his possession, or under his control, any money, or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.”
This section of the statute does not refer to property held by an officer by virtue of his office, as in the present
2. It was held by this court in Stale ex rel. Commercial Electric L. & P. Co. v. Stallcup, 15 Wash. 263 (46 Pac. 251), that an order granting a temporary prohibitive injunction cannot be superseded or suspended by an appeal. We are satisfied that the rule there announced is in accordance with the great weight of authority, and is correct. It was said in the case, at page 269:
“We think that the true rule is laid down in Merced Mining Co-, v. Fremont [7 Cal. 130], supra, viz.: ‘A stay of proceedings, from its nature, only operates upon orders or judgments commanding some act to be done, and does not reach a case of injunction/ ”
thus recognizing a distinction between an order changing the status of the parties and one which maintains the status quo. It was said in Stewart v. Superior Court, 100 Cal. 543 (35 Pac. 156, 563):
“The purpose of an injunction is to hold the subject of the litigation in statu quo until a final determination. It is doubtless true as a general rule that an injunction is not dissolved or suspended by an appeal, but there are exceptions to the general rule, and these exceptions are where the judgment commands or permits some act to be done. In such cases a stay of proceedings can be had.”
See, also, Mark v. Superior Court, 129 Cal. 1 (61 Pac. 436). The statute of California relating to appeals in injunctional orders is substantially the Same as the statute of our own state. In the case of State ex rel. Smith v. Sachs, 3 Wash. 96 (27 Pac. 1075), where the relator by
The order, therefore, being an appealable order, under the statute, may ha superseded in so far as it commands the relator to deliver the property to another; and upon
Reavis, C. J., and Fullerton, Hadley, White, Anders and Dunbar, JJ., concur.