Kollock & Co. v. Leyde

Opinion by Mr. Chief Justice McBride. 1. There is only one question arising upon this application. The section last cited provides that a counter bond may be given in case the judgment or decree appealed from be in “an action or suit upon a contract,” and the judgment enforced notwithstanding the appeal. We are of the opinion that a suit to foreclose a mechanic’s lien is not a suit upon a contract, but rather a suit to enforce a claim arising by operation of law: Boisot on Mechanics’ Liens, § 5; Benbow v. The James Johns, 56 Or. 554, 560 (108 Pac. 634); Miner v. Moore, 53 Tex. 224, 228; Davis etc. Co. v. Vice et al., 15 Ind. App. 117, 119 (43 N. E. 889). 2. It is settled by the case of Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718, 107 Pac. 460, 112 Pac. 1), that this court has the power to issue a temporary injunction to preserve the status quo of property pending an appeal. The temporary injunction heretofore issued will therefore be continued in force until this cause is finally heard and determined upon appeal. Application for Injunction Allowed. Mr. Justice Eakin, Mr. Justice McNary and Mr. Justice Bean concur.