State Ex rel. Matthews v. Webber
| Decision Date | 12 November 1883 |
| Citation | 17 N.W. 339,31 Minn. 211 |
| Parties | State of Minnesota ex rel. Albert C. Matthews v. B. F. Webber, Judge, etc |
| Court | Minnesota Supreme Court |
The relator, having received a certificate of election as clerk of the district court for Lyon county, and having duly qualified, instituted proceedings in the district court for that county to obtain possession of the books, papers, etc of the office, from one Woodford, who had been theretofore appointed to fill a vacancy in the office. In this proceeding, after a hearing before Webber, J., the relator obtained a final order that a peremptory mandamus forthwith issue, returnable the same day. This writ was issued and served, and Woodford made return that he did not intend to obey the commands of the writ, but had appealed to the supreme court from the order directing its issuance, giving bond for a stay of proceedings thereon. The relator thereupon moved the court for an attachment against Matthews, to enforce obedience to the peremptory writ. The motion was denied, and the relator then instituted this proceeding in mandamus in this court, to compel the district court to enforce obedience to its writ.
The relator's application for a mandamus must therefore be denied, and the order to show cause discharged.
John Lind, for relator.
Gordon E. Cole, for respondent.
An appeal lies to the supreme court from the district court, in mandamus, as in civil actions. Gen. St. 1878 c. 80, § 14. Independent of this provision of statute, an order of a district court allowing a peremptory mandamus is appealable under the sixth subdivision of Gen. St. 1878, c. 86, § 8, as "a final order affecting a substantial right, made in a special proceeding." See People v Schoonmaker, 19 Barb. 657. It follows that, to such an order, Gen. St. 1878, c. 86, § 10, is applicable. This section enacts that an appeal, when taken from an order, "shall stay all proceedings thereon, and save all rights affected thereby," if the appellant execute a prescribed bond, "conditioned to pay the costs of said appeal, and the damages sustained by the respondent in consequence thereof, if said order or any part thereof is affirmed, or said appeal dismissed, and abide and satisfy the judgment or order which the appellate court may give therein." Hence, when the appeal and the bond are perfected, all proceedings under the order are stayed, and all rights affected thereby saved. If the writ has not been issued or served before the appeal and bond are perfected, it should not be; and if it has been issued or served before that time, no further steps should be taken under it, or to enforce it, until the appeal is determined. It is easy to see that this will...
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