14 Wash. 365 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
By this proceeding relator seeks the
It is first claimed on the part of the plaintiff that even if the court had the right to make the order in question, the bond given in pursuance of such order was not such as the statute required. But we agree with the respondent that any question relating to the sufficiency of the bond cannot be determined in this proceeding.
The other question to be determined is as to the power of the court to fix the amount of a supersedeas bond in an action to foreclose a mortgage; and under our statute (Laws 1893, p. 122, § 7) the decision of this question must depend upon whether or not the object of such action is the recovery of money, and the judgment rendered therein is for such a recovery. If it is, the statute fixes the amount of the bond, and the court has no jurisdiction in the matter. If it is not, the statute gives the court the right to determine the amount of the bond.
In State, ex rel. Bridge Co., v. Superior Court, 11 Wash.
It is no doubt true, as argued by the respondent, that the rights of the parties would often be best sub-served if it was left to the court to fix the amount of the bond upon appeal in such cases, but the legislature having provided that the bond should be in a certain amount whenever the judgment was for the recovery of “ money,” and not that such a bond should be required when the judgment was for the recovery of “ money only,” we cannot construe the act as though this additional provision had been inserted, and must hold that the statutory bond must be given whenever the judgment is for the recovery of money, even though such recovery is coupled with the granting of other incidental relief.
There may be necessity for legislation upon this question, but until there has been such legislation, a judgment for the recovery of money can only be stayed by a bond by or on behalf of the appellant, in an amount double the judgment.
The order of the superior court fixing the amount of the supersedeas bond will be reversed and held for naught.
Concurrence Opinion
(concurring.) — I understand that the respondent Klosterman has appealed from the whole decree of the superior court, and not merely from that portion thereof establishing the priorities of the liens. I therefore concur in reversing the order fixing the amount of the supersedeas bond.