State ex rel. Gibson v. Superior Court of Pierce County

• Decision Date: 29 May 1905
• Citation: 80 P. 1108,39 Wash. 115
• Parties: STATE ex rel. GIBSON et al. v. SUPERIOR COURT OF PIERCE COUNTY et al.
• Court: Washington Supreme Court

80 P. 1108

39 Wash. 115

STATE ex rel. GIBSON et al. v. SUPERIOR COURT OF PIERCE COUNTY et al.

Supreme Court of Washington

May 29, 1905

Mandamus by the state, on relation of A. S. Gibson and another against the superior court of the state of Washington, for Pierce county, and Hon. Thad Huston, judge thereof, to compel respondent to fix the amount of an appeal bond to supersede an order granting an injunction in an action by John Grantham against relators. Application denied.

H. H Johnston, for respondents.

FULLERTON J.

On April 14, 1905, one John Grantham brought an action in the superior court of Pierce county to enjoin the relators from operating in connection with their business a shooting gallery and two certain instruments known respectively as a 'tonophone' and an 'orchestrion,' alleging that their operation constituted a public nuisance specially injurious to himself. At the time of commencing his action Grantham applied for a temporary injunction pending the final determination of the action. Notice of this application was given the relators, and a hearing had thereon, at which hearing the court granted the injunction applied for, in which it restrained the relators from operating the shooting gallery and the tonophone and orchestrion until the final determination of the action. The relators gave notice of appeal from the order, and applied to the court to fix the amount of the bond it would require to supersede the order pending the appeal. The court declined to fix the amount of the bond on the ground that the order was not one that could be superseded. The relators thereupon applied to this court for a writ of mandate to compel the trial court to fix the amount of such bond.

From the petition for the writ, and the return thereto, it is gathered that Grantham for some years last past has held a lease upon a part of a certain building in the city of Tacoma in which he has conducted a hotel and lodging house under the name of 'Hotel Gordon'; that about a year preceding the commencement of this action the predecessors in interest of the relators leased the remaining part of the building (being a room on the ground floor), and fitted it up for the exhibition of pictorial views enlarged and made attractive by means of electrical contrivances. The tonophone was put in at or near the time the business was first opened, the shooting gallery was put in about December 4, 1904, and the orchestrion about one week prior to the commencement of the action. It will be observed, therefore, that the order of the court had the effect of changing the status quo of the parties, as it prohibited the relators from conducting a part of their business and from operating the so-called musical instruments, all of which they were doing at the time the injunction issued.

The relators contend that, when considered with reference to the right of supersedeas, there is a distinction between an injunction that merely restrains the commission of an act the defendant is about to commit or attempting to commit, and one that restrains the continuance of an act which he is performing at the time of the issuance of the order; that the one cannot be superseded on an appeal, for the reason that the status quo of the parties is not changed by the injunction, the effect of the same being in fact to maintain the status quo of the parties, while the other can be superseded for the very reason that the injunction does not maintain, but actually changes, the status quo. The distinction here sought to be drawn between injunctions that can be superseded and those that cannot is not the distinction ordinarily drawn by the cases. According to the usual classification, injunctions are either mandatory or prohibitory--a mandatory injunction being one that compels the performance of some affirmative act, while a prohibitory injunction is one that operates to restrain the commission or continuance of an act--and it is only the former that is superseded by taking an appeal and giving the supersedeas bond provided by statute. The reason usually given for this distinction is that an appeal and supersedeas does not destroy the intrinsic effect of a judgment; that notwithstanding the appeal the judgment is still the measure of such of the rights of the parties as it adjudicates, and until reversed it operates as an estoppel and as res judicata as effectively as it would, had no appeal therefrom been taken and no supersedeas bond given. In other words, the appeal and supersedeas operates as a stay of affirmative action upon the judgment, as a supersedeas of execution, but does not destroy the judgment in so far as it can operate without the aid of an execution.

While there are cases to the contrary, this distinction is supported by the great weight of authority. In the Slaughterhouse Cases, 10 Wall. 273, 19 L.Ed. 915, Mr. Justice Clifford, speaking for the court, said, 'It is quite certain that neither an injunction nor a decree dissolving an injunction passed in a Circuit Court is reversed or nullified by an appeal or writ of error before the cause is heard in this court;' and it was held that the same rule applied to writs of error from state courts in equity proceedings. To the same effect is Hovey v. McDonald, 109 U.S. 150 3 S.Ct. 136, 27 L.Ed. 888. In Leonard v. Ozark Land Company, 115 U.S. 465, 6 S.Ct. 127, 29 L.Ed. 445, it was said: 'The injunction ordered by the final decree was not vacated by the appeal. Slaughterhouse Cases, 10 Wall. 273, 297, 19 L.Ed 915; Hovey v. McDonald, 109 U.S. 150, 161, 3 S.Ct. 136, 27 L.Ed. 888. It is true that in some of the Slaughterhouse Cases the appeal was from a decree making perpetual a preliminary injunction which had been granted at an earlier stage of the case, but the fact of the preliminary injunction had nothing to do with the decision, which was 'that neither an injunction nor a decree dissolving an injunction is reversed or nullified by an appeal or writ of error before the cause is heard in this court.' This doctrine, in the general language here stated, was distinctly reaffirmed in Hovey v. McDonald, and it clearly refers to the injunction contained in the decree appealed from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted. The injunction, therefore, which was granted by the final decree in this case, is in full force, notwithstanding the appeal.' And in Knox County v. Harshman, 132 U.S. 14, 10 S.Ct. 8, 33 L.Ed. 249, it was said: 'The general rule is well settled that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its...