Dygert v. Steele

AILSHIE, C. J. This is an application for a writ of mandate against the Honorable Edgar C. Steele, Judge of the Second Judicial District. The ease arises out of the case of West v. Dygert just decided by this court. The petitioner, Dygert, claims that a certain bond filed by him in the first appeal of West v. Dygert, 13 Ida. 641, 92 Pac. 753, serves as a stay or supersedeas bond in this case, and that the trial court improperly entered judgment against the sureties on the undertaking for the amount of the original judgment in the case of West v. Dygert. Two questions are presented. One is as to whether or not this is a proper cage for a writ of mandate, and, second, as to whether or not the original stay bond filed on the first appeal would serve to stay the execution of the judgment on the second appeal. In view of the fact, however, that we have concluded that the second appeal taken in the case of West v. Dygert must be dismissed and it has been so ordered, it is unnecessary for us to further consider this case. There being no appeal, there can be no further stay of execution. The application is denied and the petition is dismissed, with costs in favor of defendant. Sullivan, J., and Stewart, J., concur.