Tibbitts v. Henry

Per Curiam. This is an action to quiet title and to enjoin the defendants from using the waters of a small stream in Chelan county, which flows through their lands and lands of the plaintiffs. Upon trial a final decree was entered, quieting plaintiffs’ title, enjoining the defendants, and also awarding judgment to plaintiffs for $123.50, costs. The defendants have appealed from the judgment and decree and from each and every part thereof. The respondents have moved to dismiss the appeal, on the grounds, (1) that a money judgment in the sum of $123.50 was rendered against the appellants, and that their appeal bond, being conditioned as both an appeal and a supersedeas bond in the sum of $300, is insufficient in amount; (2) that [307] tlie judgment and decree awards equitable relief in addition to the money judgment; that the bond is conditioned as both an appeal and supersedeas bond, and that no order of court was ever made fixing the amount of such supersedeas bond. The bond recites the following conditions: “The condition of the above obligation is such that whereas the above named plaintiff on the 19th day of July, A. D. 1906, recovered judgment against the above named defendants for the sum of one hundred and twenty-three dollars and fifty cents, and for a judgment and decree quieting title to section 25, township 24, N. R. 18 E., W. M., and for an injunction enjoining and restraining defendants from entering upon the lands aforesaid and from maintaining or repairing any irrigating ditches thereon or using any of the waters of Olalla Creek while thereon in the said superior court . . . Now therefore, if the said principal T. J. Henry- and Augusta Henry, his wife, shall pay to M. O. Tibbitts and Dora A. Tibbitts, his wife, the sum above named, all costs and damages that shall be adjudged against them on the appeal, and shall satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the said supreme court may render or order to be rendered by said superior court, not exceeding the amount or value of the above named original judgment, as above set forth, then this obligation to be void; otherwise to remain in full force and effect.” This language clearly indicates that the undertaking was intended by the appellants to operate both as an appeal and supersedeas bond. A bond conditioned as both an appeal and supersedeas, and so intended is insufficient for any purpose, unless given in double the sum of the money judgment and $200 in addition thereto. This bond is for $300 only, and not sufficient in amount. Pierce v. Willeby, 20 Wash. 129, 54 Pac. 999. Nor is the undertaking, when conditioned as both an appeal and supersedeas bond, effectual for any purpose when the decree from which the appeal is taken grants relief other than, and in addition to, the payment of money, unless the amount -of the supersedeas bond has [308] been fixed by order of the trial court, which has not been done in this case. In re Drasdo’s Estate, 35 Wash. 412, 77 Pac. 735; Macy v. Sullivan, 41 Wash. 564, 84 Pac. 601. The appeal is dismissed.