State v. Stallcup

• Decision Date: 23 September 1896
• Citation: 46 P. 251,15 Wash. 263
• Court: Washington Supreme Court
• Parties: STATE EX REL. COMMERCIAL ELECTRIC LIGHT & POWER CO. v. STALLCUP, JUDGE.

46 P. 251

15 Wash. 263

STATE EX REL. COMMERCIAL ELECTRIC LIGHT & POWER CO. v. STALLCUP, JUDGE.

Supreme Court of Washington

September 23, 1896

Original application by the state, on the relation of the Commercial Electric Light & Power Company, for a writ of mandate to John C. Stallcup, judge of the superior court of Pierce county requiring him to fix the amount of a bond for stay of proceedings pending an appeal. Denied.

Stiles & Stevens, for relator.

A. N Jordan and Bogle & Richardson, for respondent.

GORDON J.

An action was commenced by the city of Tacoma against the Commercial Electric Light & Power Company, defendant (relator herein), to obtain a perpetual injunction restraining and enjoining said light and power company from stringing electric wires on the streets of the plaintiff city. Upon hearing had, the court issued a temporary injunction restraining the defendant therein from doing the acts threatened pending the litigation, and requiring the city to enter into a bond in the sum of $5,000, conditioned to pay any damages defendant might sustain by reason of the temporary injunction. Thereupon defendant (relator herein) gave notice of appeal to this court from the order granting the temporary injunction, and also filed its cost bond upon appeal. Thereafter the defendant light and power company moved the respondent, as judge of the superior court in which said action was pending, to fix the amount of bond for a stay of proceedings pending the appeal. The court denied the motion, and refused to fix the amount of such bond, in so far as it might "suspend the operation of the temporary injunction." This is a proceeding for a writ of mandate directed to the respondent, as judge requiring him to forthwith fix the amount of said bond. A single question is presented, viz.: Is a temporary injunction operative during the pendency of an appeal from the order granting it? Upon behalf of the respondent it is insisted that the appeal was perfected by the giving of the cost bond that "there are no proceedings on such order (an order granting a temporary injunction), and no process can issue thereon; and that there is nothing to be stayed." The general rule is thus stated in section 391 of Elliott, App. Proc.: "Where a decree specifically forbids a party from doing a designated act, he cannot, by obtaining a supersedeas, acquire a right to do the forbidden act. Thus, a supersedeas confers no right to do an act prohibited by a decree awarding an injunction forbidding the act. It is obvious that to assign to a supersedeas such force as would make it so operate as to give a party power to do what the decree prohibits would make it a remedy creating affirmative rights of a positive nature, rather than a preventive order or writ. This would be to completely transform one remedy into another, of an essentially different class. To adjudge that a supersedeas can create a positive and affirmative right would be, in effect, to annul the decree of the lower court before a hearing upon the merits is had, and this the policy of the law prohibits. The principles declared in analogous cases forbid that the merits of an appeal should be determined upon a preliminary application, and they forbid, also, that the judgment of the trial court should be nullified without a consideration of the merits, in due course, and upon full argument." "The general theory of injunctive relief, except so far as our Code has changed the doctrine, is that some act is about to be done by the defendant which will result in such injury to the complaining party as cannot be compensated in damages that can be recovered in an ordinary action at law. If the party enjoined can, by appealing, go on and do the act which will result in the irreparable damage, compel the party who has obtained the injunction to seek his redress in an action for damages upon the appeal bond, there would seem to be no material advantage in obtaining an injunction in such case against such injurious act." State v. Chase, 41 Ind. 356. In Sixth Ave. Ry. Co. v. Gilbert E. R. Co., 71 N.Y. 430, it was held that: "An appeal from a judgment restraining an action on the part of defendant, and a stay of proceedings thereon, do not affect the validity or effect of the judgment pending the appeal. The defendant is not absolved from the duty of obedience to it, or permitted to do that which the judgment absolutely prohibits. The judgment, so far as it enjoins the defendant, needs no execution. It acts directly without process, and the stay only operates to prevent action on the part of plaintiff." At page 433 the court say: "It did not absolve them from the duty of obedience, and permit them to do that which the judgment absolutely prohibited, and the doing of which would, as adjudged by the court, cause irreparable mischief to the plaintiff, or an injury which could not certainly be compensated in damages." See, also, Klinck v. Black, 14 S.C. 241; Central Union Tel. Co. v. State, 110 Ind. 203, 10 N.E. 922, and 12 N.E. 136; Slaughterhouse Cases, 10 Wall. 273; Mining Co. v. Fremont, 7 Cal. 130; High, Inj. § 1698.

Counsel for the relator concedes that the general rule is that supersedeas bonds do not suspend temporary injunction orders, but he plants himself upon the statute of this state governing appeals (sections 6 and 7, Act March 8, 1893; Laws 1893, p. 119), and the cases of State v. Jones, 2 Wash St. 662, 27 P. 452, and State v. Superior Court, 12 Wash. 677, 42 P. 123. We have, in the course of investigation, examined a great many statutes, but we think that the distinction for which counsel contends-and which contention is supported to some extent by what is said in State v. Superior Court, supra-is one of phraseology, and not of principle. We have not been able to find any authority which supports the claim that an appeal from an order awarding a temporary injunction annuls the order, and leaves the parties against whom it is directed as free to act as if the injunction had not been awarded. Rule 93 of the supreme court of the United States provides, "When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying the injunction during the pendency of the appeal upon such terms as to bond or otherwise as he may consider proper for the security of the rights of...