Berding v. Varian
Idaho Supreme Court
Original proceeding for Writ of Mandate. Defendants demur. Demurrer sustained; alternative writ quashed and peremptory writ denied. The object of the stay bond is to prevent the enforcement of a decree or judgment pending the appeal, and if the stay bond is not given, the enforcement of such decree is not stayed. (California Mortgage & Savings Bank v. Graves, 129 Cal. 649, 62 Pae. 259; Montgomery v. Tutt, 11 Cal. 190, 191; Union Mutual Life Ins.
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Original proceeding for Writ of Mandate. Defendants demur. Demurrer sustained; alternative writ quashed and peremptory writ denied. The object of the stay bond is to prevent the enforcement of a decree or judgment pending the appeal, and if the stay bond is not given, the enforcement of such decree is not stayed. (California Mortgage & Savings Bank v. Graves, 129 Cal. 649, 62 Pae. 259; Montgomery v. Tutt, 11 Cal. 190, 191; Union Mutual Life Ins. Go. v. Windett, 36 Fed. 838; State v. Thiele, 19 Neb. 220, 27 N. W. 109; Collins v. Brown, 64 Neb. 173, 89 N. W. 754; Evans v. Kahr, 60 Kan. 719, 57…
1Concurrence
RICE, C. J.,
Concurring. — I concur in the foregoing opinion. I think attention should be called also to the fact that the writ of mandate should not issue where there is a plain, speedy and adequate remedy in the ordinary course of law. (C. S., sec. 7255.)
It is quite generally held that an order granting or refusing a writ of assistance is appealable. (Noble v. Harris, 33 Ida. 401, 195 Pac. 543; Williams v. Sherman, ante, p. 63, 199 Pac. 646; Escritt v. Michaelson, 73 Neb. 634, 10 Ann. Cas. 1039, and note, 103 N. W. 300, 106 N. W. 1016.) The existence of the remedy by appeal prevents the…
2Cases cited4 opinions
- Williams v. ShermanIdaho Supreme Court · 1921
- Escritt v. MichaelsonNebraska Supreme Court · 1905
- Hackney v. Raymond Bros. Clarke Co.Nebraska Supreme Court · 1906
- Noble v. HarrisIdaho Supreme Court · 1921