State ex rel. Flaherty v. Superior Court

77 P. 33, 35 Wash. 200, 1904 Wash. LEXIS 435

• Court: Washington Supreme Court
• Decided: June 9, 1904
• Docket: No. 5105
• Status: Published

Opinion

Per Curiam.

One Edward Van de Yanter 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 seventeen years last past; that the appellant had attempted to obstruct the way by 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 in junction was granted. The relator, desiring to appeal to this could, applied to the superior court to fix the amount of a supersedeas bond to he 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declined to fix the amount of the bond, holding that the injunction granted was not such an injunction as could he superseded, and the relators apply here for a writ of mandate compelling it to fix the amount of such bond.

In State ex rel. Commercial Electric Light & Power Co. v. Stallcup, 15 Wash. 263, 46 Pac. 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a case where the relief granted merely forbids the doing of some act; in other words, mandatory injunctions could he superseded, while those merely preventive could not. The injunction in the present case is of the latter kind. It is preventive merely, and cannot he rendered inoperative by a supersedeas.

The application is denied.