Pierson v. Peirce

Rudkin, J. This action was brought, in ihe first instance, against the defendant the First National Bank of Seattle, to recover, the sum of $2,500, which the bank agreed to pay the plaintiff in this action, upon he happening of a certain contingency, set forth in the amended complaint. The prayer of the complaint was Cor a judgment. for the sum of $2,500, and costs. The defendant bank thereafter paid said sum of $2,500 into- court, and caused the other defendants, Starbuelc and Pc irce, to be substituted as defendants in its place. A trifl was had, and the court adjudged that the plaintiff was entitled to the $2,500 paid into court, and directed the c erk of the court to pay said sum over to him. The defenc ant Peirce appealed from this judgment, and, upon his application, the court fixed the amount of the supersedeas lond in the sum of $500, and the appellant gave a bond in the sum of $800, conditioned as both a stay bond and a cost bond, and the respondent now moves to dismiss the appeal, on the ground that the bond is insufficient, and that, by reason thereof, this court has no jurisdiction of the ippeal. The motion must be granted. In numerous cases, commencing with State ex rel. Washington Briage Co. v. Superior Court, reported in 11 Wash. 366, 39 Pac. 644, we have held that the giving of a stay bond in double the amount of a money judgment is jurisdictional in appeal, and this must now be accepted as the settled 1 iw in this court. We are unable to distinguish this case from our former decisions. In State ex rel. Commercial Nat. Bank v. Superior Court, 14 Wash. 365, 44 Pac. 859, is was held that the requirement that a stay bond shall be given in double the amount of a money judgment is applicable to a party appealing from a mortgage foreclosure although the appellant is not personally liable for the payment of the mortgage debt. In that ease the court said: [445] ■ “Respondent contends that the provision as to the giving of a bond in double the amount of the judgment applies only in cases where the appeal is taken by the one who is liable to pay the judgment; but there is nothing in the statute which warrants this contention. It makes no distinction in regard to appeals by different parties affected by the judgment, and the statute having made no such distinction, it is not for the courts to make it. Beside, the effect upon the owner of the judgment would be the same if its execution were stayed in the interest of a party not bound to pay it, as it would if the stay were in the interest of such party.” So, in this case, the clerk of the court was directed to pay the sum of $2,500 to the respondent. Had the clerk appealed, or attempted to appeal, from this order, we have no doubt that he would have been required to give a bond in double the amount of the judgment, in order to effect a stay of proceedings pending the appeal, and the effect of the appeal by the present appellant has the same effect as would an appeal and stay by the clerk himself. The respondent is deprived of his money pending the appeal, and the fruits of his judgment may be wholly lost through the wrongful acts of the clerk, or from other causes over which he has no control. The appeal is therefore dismissed. Mount, C. J., Hadley, and Dunbar, J.J., concur. Root and Crow, JJ., took no part.