State v. Superior Court of King County

• Decision Date: 09 June 1904
• Citation: 77 P. 33,35 Wash. 200
• Parties: STATE ex rel. FLAHERTY et al. v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

77 P. 33

35 Wash. 200

STATE ex rel. FLAHERTY et al. v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

June 9, 1904

Mandamus on the relation of one Flaherty and others to compel the superior court of King county to fix the amount of a supersedeas bond in a suit by Edward Van de Vanter against relators. Application denied.

George McKay, for plaintiffs.

PER CURIAM.

One Edward Van de Vanter brought an action in the superior court of King county against the relators to enjoin them from fencing up or otherwise interfering with a certain road leading from his premises across the premises of the relators to a recognized public highway. In his complaint he alleged that the road in question was the only way leading from his premises to the public highway, and that the same had been used by him and his predecessors in interest without hindrance or interruption for more than 17 years last past; that the appellant had attempted to obstruct the way be means of fences, locking of gates, and other acts; and would close the same entirely unless restrained by the court. He prayed a temporary restraining order, which was granted, and continued in force until the final trial of the case, when a perpetual injunction was granted. The relators, desiring to appeal to this court, applied to the superior court to fix the amount of a supersedeas bond to be given in order to stay the judgment pending the appeal. That court declined to fix the amount of the bond, holding that the injunction granted was not such an injunction as could be superseded, and the relators apply here for a writ of mandate compelling it to fix the amount of such bond.

In State ex rel. v. Stallcup, 15 Wash. 263, 46 P. 251, we held, construing the statute now in force, that a supersedeas, from its nature, operated only upon orders or judgments commanding some act to be done, and does not reach a case where the relief granted merely forbids the doing of some act; in other words, mandatory injunctions could be superseded, while those merely preventive could not. The injunction in the present case is of the latter kind. It is preventive merely, and cannot be rendered inoperative by a supersedeas.

The application is denied.