State v. Sachs

• Decision Date: 12 November 1891
• Parties: STATE EX REL. SMITH v. SACHS, JUDGE.
• Court: Washington Supreme Court

27 P. 1075

3 Wash. 96

STATE EX REL. SMITH v. SACHS, JUDGE.

Supreme Court of Washington

November 12, 1891

Application of L. D. Smith for a peremptory writ of mandate to Morris B Sachs, judge of the superior court of Jefferson county, to compel him to determine and fix the amount of relator's stay-bond on appeal from a judgment of ouster from the office of district-school clerk. Writ allowed.

Johnson & Moody, for relator.

Geo. W. Tyler, for respondent.

ANDERS, C.J.

On the 7th day of October, 1891, one Charles F. Bailey filed in the superior court of Jefferson county an information against the relator herein, claiming an interest in and right to the office of clerk of school-district No. 1, in said Jefferson county, and praying judgment that the relator be ousted from said office, and that he, the said Bailey, be adjudged entitled to and be put into possession of the same. Upon the trial of the cause judgment of ouster and for costs was rendered against this relator and in favor of said Bailey, from which judgment the relator Smith, appealed to this court. Within five days after notice of appeal was given the relator filed his appeal-bond with the clerk of said superior court, which was duly approved by said clerk; and thereafter requested the respondent, as judge of said court, to fix the amount of a bond to stay proceedings in said cause pending the appeal to the supreme court This the judge declined to do, whereupon the relator applied, upon motion and affidavit, to this court for an alternative writ of mandate commanding the said superior judge to order and fix the sum and amount in which a good and sufficient bond might be given by relator to stay proceedings on said judgment pending the appeal, or to show cause why the same had not been done. The writ was issued as prayed for, and on the return-day thereof the respondent appeared by his counsel, and filed his answer and return to said writ, wherein it is stated that he declined to fix the amount of a bond to stay proceedings, for the reasons- First, that, in his opinion, there is no law in this state providing for a stay of proceedings pending an appeal in the case of usurpation of an office and judgment of ouster; and, second, that, if the power to fix a bond and stay proceedings is in the discretion of the court, he (respondent) does not think this is a case in which such discretion should be exercised in favor of the appellant. The...