Hale & Norcross Silver Mining Co. v. Fox

THE COURT. Motion for a writ of supersedeas. A motion heretofore made to dismiss the appeal in this cause, upon the ground that the order appealed from is not appealable, was continued until the hearing of the appeal upon its merits, for the reason that the motion could not he determined without an examination into the merits of the appeal. (Hale etc. Min. Co. v. Fox, 120 Cal. 261.) Thereafter, upon the superior court proceeding to enforce the order appealed from, the present motion for a supersedeas was made in behalf of the appellants, and was resisted at the hearing upon the ground that the order is not appealable, thus presenting the same question whose hearing had been continued

This question cannot he determined by a mere inspection of the order appealed from, hut, as was held upon the former motion, involves the merits of the order and a judicial consideration of the facts and averments upon which the order was made. It [57]would, therefore, be in contravention of the practice of this court to determine the question in advance of the hearing of the appeal. If the order is appealable, the appeal deprived the superior court of the power to enforce it while the appeal is pending; and whether it is appealable is a question to be ultimately decided by this court, and is now pending here upon motion to dismiss; and while that motion is undetermined it is the duty of the superior court to refrain from its enforcement. (Ruggles v. Superior Court, 103 Cal. 125.)

The application for the writ is granted.