With due deference to the opinion of the court and its able and genial author, I am unable to concur in that part of the opinion respecting assignment of error number six, which holds that the circuit court retains jurisdiction to try a criminal case on the merits after an appeal to the supreme court has been perfected from an order refusing to dismiss the indictment on the ground set forth in section 13-1602, Oregon Code 1930, a demurrer to said indictment and the order of the circuit court overruling it being part of the judgment roll on appeal.
In the case at bar, I find no analogy to the case of McKenziev. Los Angeles Life Ins. Co., 88 Cal. App. 259 (263 P. 338). That case involves a construction of a statute which expressly prescribes that an appeal "does not stay proceedings without a writ of supersedeas where the order * * * refuses to grant a change of the place of trial of an action". Under that statute, the California court of appeals held that the granting of a stay was discretionary.
If, in Oregon, we had a statute prescribing that upon appeal the jurisdiction of the circuit court to try a criminal cause on the merits shall not be divested without a writ of supersedeas where the order from which the appeal is taken is one refusing to dismiss the indictment, I would concur in the statement that the case at bar and the California case, last above cited, are analogous. In the absence of such a statutory reservation of jurisdiction, in my opinion, the California case is not in point.
Ex parte City Council of Montgomery, 114 Ala. 115 (14 So. 365), is a proceeding to procure a writ of mandamus against the chancellor of the southeastern chancery division and the chancery court of Montgomery *Page 169 county to compel a hearing of a demurrer and a motion to dismiss a bill in equity, while an appeal was pending in the supreme court. I quote from the opinion:
"It is manifest, therefore, that the questions we are asked to compel the chancellor and the chancery court to hear and determine are the questions which are now in this court, and which we must determine; and, being here the universal rule ex necessitate is that they cannot also be in the chancery court. A different rule, or the relaxation of the rule in the manner, and to the extent, involved in granting the mandamus now sought, would lead to, or admit of, results which cannot be justified. If, for example, the court below has the power to pass on the demurrers, it also has the power, of course, to dismiss the bill, and the exercise of such power is the action directly invoked by the motion to dismiss for the want of equity. If this was done, we would have the intolerable anomaly of a pending appeal in this court in a nonexistent cause, or the equally unheard of result of a nisi prius court's emasculating, and by indirection dismissing, an appeal properly taken to, and pending in, an appellate court. On the other hand, if the trial court should conclude, on a hearing of the demurrer and motion to dismiss, that the bill contained equity, its decree to that effect would be the merest waste paper as against the judgment of this court to the contrary, on the appeal now here; and, if the lower court's conclusion should coincide with that of this court on the question of the equity of the bill, its decree would still be sheer supererogation, and without force or effect. That there are exceptions to the rule that `an appeal, properly perfected, removes a case wholly and absolutely from the trial court, and places it in the higher tribunal,' (Elliott, App. Proc. § 541; Allen v. Allen, 80 Ala. 154;) is quite true, (Elliott, App. Proc. § 542;) but the present case is not one of them. The lower court, pending an appeal may proceed in matters which are entirely collateral to that part of the case which is taken up, but it can do nothing *Page 170 in respect of any matter or question which is involved in the appeal, and which may be adjudged by the appellate court. The operation of the mandamus here prayed would be, as we have seen, to compel precisely this to be done by the court below. The application must be denied."
Bearing in mind that in the case at bar a general demurrer to the indictment was regularly before this court upon appeal when the trial in the circuit court was had, the conclusion is inescapable that the above quotation announces a doctrine on the point involved diametrically opposite to that of the opinion herein.
In the case of Johnston v. Circuit Court, 140 Or. 100 (12 P.2d 1027), defendant herein and his codefendant sought to obtain a peremptory writ of mandamus requiring the circuit court to vacate an order made while the case at bar was pending in the supreme court on appeal, which order, thus sought to be vacated, purported to fix a time for the trial of the case at bar in the circuit court.
In my opinion, an order of the circuit court, prescribing a date upon which a trial therein shall be had of a case then pending on appeal in the supreme court, is void for the reason that, after the appellate court has obtained jurisdiction and before the case is disposed of by the reviewing court, the trial court is without jurisdiction to make any order, except such as may be necessary for the presentation of the case on appeal. Neither the order purporting to fix the time for trial in the circuit court, nor the proposed order vacating it, is within the category of those which aid in presenting a proper record for consideration of the case on appeal. Both are beyond the jurisdiction of the trial court while an appeal is pending in the supreme court. To *Page 171 have granted said petition for a peremptory writ of mandamus, would have necessitated an order by this court requiring the circuit court to act beyond the scope of its jurisdiction, and, for that reason, as I there tried to indicate, I concurred in the action of this court denying the writ. When a court is without jurisdiction to speak, certainly mandamus will not lie to compel it to break its silence.
With the greatest respect for the opinion of the court and for the distinguished jurist, who wrote it, I am compelled to believe, as contended by defendant, that the trial court did not have jurisdiction to try defendant while his appeal was pending in the supreme court. Except in those jurisdictions having statutory provisions, not found in our code, the authorities uniformly and overwhelmingly sustain defendant's contention in that regard. This compels me to dissent. *Page 172