Day v. Gunning

HENSHAW, J. An alternative writ of mandate was issued from this court, directed to the respondent, and ordering him to admit petitioner to the use and enjoyment of the office of auditor and recorder of the county of Yuba, or to show cause why he does not do so. At the hearing upon the return it was made to appear that at the general election held in 1898 the petitioner and the respondent were opposing candidates for the office of auditor and recorder of Yuba county. In due time the board of supervisors canvassed the vote cast at the election, and [528]declared Gunning to have been elected to the office. A certificate of election was issued to him accordingly. Within the time contemplated by law the petitioner instituted a contest of the election under the provisions of title 2, part 3, of the Code of Civil Procedure. The contest was heard in the superior court, the votes were counted, and as a result the court gave its judgment that the contestor, the petitioner herein, was duly elected to the office, and “that said defendant and respondent is unlawfully holding said office; that the certificate of election to said office heretofore issued to said respondent for said office is hereby revoked, annulled, set aside, and canceled; that the clerk of the said county of Tuba is ordered to issue to said Fred H. Day a certificate of election to said office, and that upon properly qualifying said Fred PI. Day be let into possession' of said office.” Thereafter, and within ten days of the date of the judgment, Gunning appealed to this court, giving the ordinary three-hundred-dollar bond upon appeal. Between the date of the institution of the election contest and the date of the judgment therein the term of the auditor-elect commenced. By virtue of his certificate of election Gunning entered the office and discharged its duties. He was so in possession and so discharging its duties at the time when the judgment was rendered against him in the election contest. After that judgment Day duly qualified and made demand upon Gunning to be let into possession of the office, with which demand Gunning refused to comply.

Under these facts it is seen that the legal question presented is the single one, namely: Whether an appeal from a judgment such as this operates as a supersedeas. Generally speaking, an appeal to this court, accompanied by the three-hundred-dollar undertaking, stays the execution of the judgment, excepting judgments in certain enumerated kinds of cases. As an appeal in contested election cases is accorded to either party under section 1126 of the Code of Civil Procedure, it must follow that unless the judgment which the court is authorized to enter in such a case belongs to one or another of the excepted classes, the appeal does operate to stay its enforcement. Section 949 of the Code of Civil Procedure provides that the perfecting of an appeal stays proceedings in the court below upon the judgment,