
    [No. 6284.
    Decided July 17, 1906.]
    F. B. Lazier, Respondent, v. R. W. Cady et al., and L. H. Higgins, Intervener, Appellants.
      
    
    Appeal — Bonds and Supercedeas — Amount—Sueficiency. Separate appeals by defendants claiming $7,000 in the hands of a co-defendant, a stakeholder, who made no claim to the money and took no appeal from a judgment for plaintiff directing payment of the money into court, and its further disposition, do not affect that part of the judgment directing the stakeholder to pay the same into court; hence appeal and supersedeas bonds in the sum ordered by the court, $1,200, are sufficient to stay the other parts of the judgment, and to give the supreme court jurisdiction of the appeal.
    Motions to dismiss appeals from a judgment of the superior court for Pierce county, Huston, J., entered March 19, 1906.
    Denied.
    
      Ellis & Fletcher, for appellant Cady.
    
      Charles O. Bates, for appellant Higgins.
    
      H. H. Johnston and Wm. L. Waters, for respondent.
    
      
      Reported in 86 Pac. 209.
    
   Rudkin, J.

The facts in this case* so far as material to a! proper understanding of the motions interposed to dismiss the appeals, are these: On the 20th day of January, 1906, the defendant Cady, acting for himself and for the plaintiff Lazier, procured an option for the purchase of a tract of tide land for the sum of $20,000. During the life of this option, Cady resold the land to the defendant Alexander for the sum of $35,000, realizing a net profit on the resale of $14,000 over and above commissions. This action was brought by Lazier to recover from Cady the sum of $7,000, being one-half the profits arising from their joint investment. Alexander, the purchaser from Cady, was made a party defendant, apparently because he still retained in his possession a portion of the purchase price. L. H. Higgins intervened in the action and claimed the same $7,000, through some arrangement with Cady, but the exact nature of his claim does not appear in the record before us. During the progress of the trial, it appeared that the Fidelity Trust Company was the custodian of the deed from Cady to Alexander, which was to> be delivered to the latter upon the payment of the $7,000 in controversy. Upon this fact appearing, the Trust Company was made a party defendant by order of the court.

With these parties before it, the court entered its decree^ the material parts of which are as follows: (1) That the defendant Alexander forthwith pay into the registry of the court the sumí of $7,000; (2) that the clerk piay this money over to the plaintiff upon the receipt of the same from Alexander; (3) that the Fidelity Trust Company deliver the Cady deed to Alexander upon the payment of the money into' court; (4) that the clerk pay over to the plaintiff the further sum of $950 which had theretofore been deposited in court by the intervener, and (5) that the intervener take nothing by the action. The intervener appealed from the judgment and decree in favor of the plaintiff and against the intervener, and from every part thereof. The defendant Cady likewise ap¡pealed from the judgment and decree in favor of the plaintiff and against the defendant Cady, and from every part thereof. Each of these appellants applied to the court to fix the amount of the supersedeas bond pending the appeal, and as to each' the amount of the bond was fixed in the sum of $1,000. Thereupon each appellant filed a bond in the sum of $1,200 conditioned both as a cost and a supersedeas bond.

The respondent now moves to dismiss these appeals for the reason that the bonds are insufficient in substance to render the appeals effectual. The theory or claim of the respondent is that the order directing the defendant Alexander to pay the snm of $7,000 into court is iu effect a personal judgment for that amount, and that to stay execution on snch judgment would require a bond in tbe sum of $14,000. We are not called upon at this time to determine whether snch an order may he enforced by' execution, or whether it can only be enforced by proceedings as for a contempt, as that question does not arise at this time. So far as the record before us discloses, the defendant Alexander was noi party to the controversy between tbe different claimants toi tbe fund in bis hands. He was simply a stakeholder, bolding the fund subject to the order of the court. The court transferred the fund from his hands into the registry of the court, and he took no appeal from that part of the judgment.

We are, therefore, of opinion that that portion of the judgment directing the payment of the money into court is not affected by the appeals or superseded by the appeal bonds, and that the respondent is at liberty to enforce that portion of the judgment notwithstanding the appeals or the appeal bonds. In other words, tbe bonds only stay proceedings on that part of the judgment directing the payment of the fund in controversy to the respondent out of the registry of the court, and in this view the case is controlled by the decision of this court in Pierson v. Peirce, 42 Wash. 164, 84 Pac. 731.

The motions toi dismiss are therefore denied.

Mount, O. J., Fullerton, Hadley, Dunbar, Crow, and Hoot, JJ., concur.  