
    Submitted on Motion of Defendant for Judgment on the Pleadings and Discharging Him from Custody, June 17,
    decided June 24, 1913.
    In Re VINTON.
    (132 Pac. 1165.)
    Contempt — Appeal—Stay—Bond.
    1. Execution of order of imprisonment in contempt proceedings is stayed by the service, and filing of notice of appeal and an undertaking conditioned for satisfying the same if affirmed, Section 684, L. O. L., authorizing an appeal in such a proceeding in like manner and with like effect as from a judgment in an action.
    Mandamus — Appeal—Stay—Bond—“Judgment.”
    2. The determination in mandamus requiring the defendant therein to execute a contract and approve a bond is, by provision of Section 601, L. O. L., a judgment, and not a decree, within Section 551, as to whether anything further than .giving an undertaking on appeal is necessary to stay proceedings.
    Habeas Corpus — Discharge—Excess of Jurisdiction — Contempt Proceeding.
    3. Proceedings in mandamus being under Section 552, L. O. L., stayed by the perfecting of an appeal therein with an undertaking for the appeal only, the eourt exceeds its jurisdiction within Section 642, as to discharge from custody on habeas corpus, by proceeding, pending the appeal, to enforce obedience to the peremptory writ of mandamus by contempt proceedings. •
    Original proceeding in habeas corpus by William T. Vinton.
    Statement by Mr. Justice Burnett.
    It appears that tbe Circuit Court of Yamhill County on May 27, 1913, issued a writ of peremptory mandamus requiring tbe defendant, as mayor of tbe City of McMinnville, to execute on behalf of the municipality a paving contract and approve a bond given to secure tbe performance thereof. On May 28th a motion for a new trial of tbe mandamus proceeding was overruled, and tbe defendant on that date gave and filed bis notice of appeal to this court from the order directing tbe writ to issue. On tbe following day be filed bis undertaking on appeal therein, conditioned to pay all damages, costs and disbursements which might be awarded against tbe defendant on tbe appeal. On that same day an order of tbe Circuit Court was issued and served upon tbe defendant, requiring him to show cause on June 2, 1913, why be should not be committed for contempt in persisting in bis refusal to sign the contract and approve tbe bond above mentioned. Notwithstanding tbe notice and undertaking on appeal bad been filed as stated, tbe Circuit Court on the date last named adjudged tbe defendant guilty of contempt, imposed upon him a fine of $300, and committed him to imprisonment in tbe county jail without bail for a period not to exceed six months from tbe date of the order, unless be should sooner obey tbe commands of tbe peremptory writ of mandamus. On tbe very day tbe order of commitment was made, tbe defendant filed in tbe Circuit Court bis notice of appeal in tbe contempt proceeding, together with an undertaking on that appeal signed by two justifying sureties, conditioned that the defendant would pay all damages, costs and disbursements awarded against him on appeal in that proceeding, and that if the judgment of contempt should be affirmed, either in whole or in part, he would satisfy the same so far as affirmed. Notwithstanding all the transactions thus recited, the sheriff of Yam-hill County took the defendant into custody, and imprisoned him for the contempt specified. The writ of habeas corpus herein was thereupon issued out of this court to inquire into the legality of his detention. The sheriff having made his return to the writ to the effect that he held the defendant by virtue of the order adjudging the defendant guilty of contempt, issues were framed substantially setting forth the proceedings as already narrated, and the defendant has moved the court for a judgment on the pleadings discharging him from imprisonment.
    Defendant Discharged.
    For the motion there was a brief over the names of Mr. Martin L. Pipes, Messrs. McCain, Vinton & Burdett and Mr. B. A. Kliks.
    
    
      Contra, there was a brief over the names of Mr. George G. Bingham and Mr. H. M. Easterly.
    
   Mr. Justice Burnett

delivered the opinion of the court.

The question to be determined is whether the defendant is legally deprived of his liberty, for the rule is that “if it appear on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before him, authorized by law, such prisoner shall only be discharged in one of the following cases: (1) "When the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person. * * (4) "When the order or process, though in proper form, has been issued in a case not allowed by law * * ”: § 642, L. O. L.

At the threshold of this investigation we are confronted with the fact that, although the court had adjudged the defendant guilty of contempt and committed him to prison, the defendant had given an undertaking and had filed his notice of appeal coupled with an undertaking conditioned for a stay of proceedings in that very litigation. It is stated in Section 684, L. O. L., that “either party to a judgment in a proceeding for a contempt may appeal therefrom, in like manner and with like effect as from a judgment in an action. * * ” It is declared also in Section 551, L. O. L., that “the undertaking of the appellant- shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal; but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following: (1) If the judgment or decree appealed from be for the recovery of money, or of personal property, or the value thereof, that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed. * * ” So far, then, as the actual detention of the defendant is concerned, the execution of the order of imprisonment was stayed by the service and filing of the notice of appeal and undertaking in the contempt proceedings, for such an undertaking is operative from the date of its filing: Anderson v. Phegley, 54 Or. 102 (102 Pac. 603). This of itself would discharge the prisoner until the contempt proceeding could be heard in this court on appeal. The record, however, discloses farther back another insuperable objection to the imprisonment of the defendant. In addition to the instance already quoted from Section 551, prescribing additional conditions to be inserted in an undertaking to work out a stay of proceedings, that section has Subdivisions 2 and 3, the one relating to a judgment or decree respecting the recovery of possession, or partition of real property, or the foreclosure of a lien thereon, and the other concerning a decree requiring the transfer or delivery of personal property. A fourth subdivision applies to a decree for the foreclosure of a lien, and contains this further condition: “When the decree appealed from requires the execution of a conveyance or other instrument, execution of the decree is not stayed by the appeal, unless the instrument is executed and deposited with the clerk within the time allowed to file the undertaking, to abide the decree of the appellate court.”

Although forms of actions and suits as prescribed at common law have been abolished, yet the distinction is carefully preserved in this state between actions at law, suits in equity, and what are known to our code as special proceedings. A judgment is defined to be the final determination of the rights of the parties in the action: L. O. L., § 179. Under the equity procedure, “the final determination of the rights of the parties thereto is called a decree * * ” (§ 409, L. O. L.); while the final determination of the rights of the parties in a special proceeding, among which are the writ of mandamus, the writ of habeas corpus, and the punishment of contempt, is denominated a judgment: § 601, L. O. L. With these distinctions between judgments and decrees in mind, it is manifest that the decision of the court in the mandamus proceeding was not a decree within the meaning of that part of Subdivision 4 of Section 551, L. O. L. supra, which has been quoted. The determination of the mandamus litigation which required the defendant to execute the contract mentioned and approve the bond given in connection therewith was a judgment, and is not governed by the excerpt from Subdivision 4 of Section 551 just mentioned, as that applies only to decrees in equity. It is provided in Section 552, L. O. L., that in cases not provided for in the subdivisions of Section 551, when an appeal is perfected with an undertaking for the appeal only, proceedings shall be stayed as if the further undertaking thereof had been given.

The deduction is plain that, when the defendant in the mcmidamus proceeding served and filed his notice of appeal with an undertaking conditioned to pay all damages, costs, and disbursements which might be awarded against him on the appeal, it operated to suspend further proceedings by the Circuit Court in the mandamus action. Hence, when called upon to show cause on June 2, 1913, why he should not be punished for contempt, the defendant was able to and did exhibit to the court a situation in which the authority to enforce obedience to the peremptory writ of mandamus by contempt procedure had been suspended by the stay of proceedings which resulted by operation of law from the filing of the notice of appeal and undertaking. Although the law says in such cases that the enforcement of the peremptory writ must be suspended until the merits of the controversy can be determined on appeal, the Circuit Court pushed its determination to the bittér end of punishment, and in so doing exceeded its jurisdiction within the meaning of Subdivision 1 of Section 642, L. O. L., supra. Although literally in proper form, the order or process under which the defendant is detained has been issued in a case not allowed by law. The Circuit Court ignored the precepts of the statute suspending execution until further hearing when proper security is given. The record discloses that the liberty of a citizen has been taken from him in a manner not sanctioned by the laws of the land.

A judgment will be entered discharging him from custody.

Defendant Discharged.  