11 Wash. 366 | Wash. | 1895
The opinion of the court was delivered by
The relator obtained a judgment against the Land and River Improvement Company, of Everett for the sum of $8,671.80 and costs, recovered November 19, 1894. The judgment further decreed the foreclosure of a mechanic’s lien, for the construction of a bridge, upon the bridge and the land upon which it stood, and established relator’s lien as a prior lien to those of the other defendants in the action. Execution was issued November 20, 1894, to the sheriff of Snohomish county, and he proceeded to advertise the property for sale. On the 7th day of December following, the Land and River Improvement Company of Everett made an ex parte application to the judge of
Sec. 7 of the chapter in relation to appeals to the supreme court, Laws, 1893, p. 122, provides that—
“ The appeal bond must be executed in behalf of the •appellant by one or more sufficient sureties, and shall be in a penalty of not less than $200 in any case; and in order to effect a stay of proceedings as in this section provided, the bond, where the appeal is from a final judgment for the recovery of money, shall be in a penalty double the amount of the damages and costs recovered in such, judgment and in other cases shall be in such penalty, not less tha,n $200, and sufficient to save the respondent harmless from damages by reason of the appeal, as a judge of the superior court shall prescribe.”
It is the contention of respondents in this case that the judgment here falls within the last provision above quoted, and that the statute should not be literally construed; while the relator contends for a strict construe
It is strongly urged by the learned counsel for the respondents that the statute cannot be construed to recover damages for foreclosure of mortgages, or in replevin actions, or actions of forcible entry and detainer, and that the intention of the legislature was to provide for the bond in double the value of the judgment only in cases where there was no other security for the payment of the judgment. It seems to us that had this been the intention of the legislature it would have been easy and natural for it to have inserted the word “only” which would then have made the statute plain.
But whatever construction might be placed upon this law, so far as the foreclosure of mortgages is concerned, a question which we will not now investigate, this action must stand upon an entirely different basis. In the foreclosure of a mortgage a deficiency judgment is generally rendered, but there may or may not be a deficiency judgment in the foreclosure of a mechanic’s lien. The judgment is generally two-fold in its application, the judgment for the deficiency being only against the contractor, and there being no judgment for deficiency against the owner of the property upon which the lien is foreclosed. The lien in this case is purely incidental. The judgment was a straight judg
It is also urged by the respondents that the plaintiff has not sought his proper remedy; that his remedy was by mandamus against the sheriff to compel him to act, instead of by certiorari against the court. It may be that the relator here had the right to mandamus the sheriff, but if he had, we think it was a concurrent right, and it would be more equitable to proceed against the court who made the order without jurisdiction than against the subordinate officer, whose primary duty it is to obey the orders of the court. From our view of the law the court in this case acted without jurisdiction absolutely, having no authority to fix the amount of the bond; and, it is stated by Harris on Certiorari, § 78, that “in England, as well as in this country, the writ of certiorari will go when the act sought to be reviewed or to be questioned was in excess of jurisdiction, and not in any mere point of form.” We think the cases generally sustain this text.
The relator then having applied for the proper remedy. and the court having acted without jurisdiction, the order complained of will be set aside and held for naught.
Hoyt, C. J., and Anders, Scott and Gordon, JJ., concur.