(dissenting).- — The statute provides that an appeal bond, in order to effect a stay of proceedings, where the appeal is from a “final judgment for the recovery of money” shall be in a penalty double the amount of the “damages and costs recovered in such judgment,” and, in other cases, in a sum not less than two hundred dollars, and “sufficient to save the respondent harmless *446from damages by reason of the appeal, as a judge of the superior court shall prescribe.” Bal. Code, § 6 >06. The contest between the parties in this action was oí er a fund in court, and the judgment entered simply c etermines which of them was entitled to the fund, Tin .question then is, is this a judgment for the recovery of noney, as that term is used in the statute ? I do not thinl so. The statute, in using this phrase, has in contemplatic n a judgment for the recovery of money by one party a ;ainst another which that other is obligated to pay; it has no reference to a judgment which merely determines "he rights of the parties to a specific chattel. Suppose, in this case, the chattel in court had been a watch, or some article of personal property other than money, what kind if a bond would the court say should be given ? Assuredly one “sufficient to save the respondent harmless from da nages by reason of the appeal, as a judge of the superior e iurt shall prescribe.” This is the only bond that could be given; there could be none in double the amount of the recovery. Why should the rule be different merely because the fund in court is money ? This question the opinion o: ’ the majority does not answer.
The case of State ex rel. Commercial Nat. Bank v. Superior Court, 14 Wash. 365, 44 Pac. 859, wher read in connection with its facts, I do not think supports the rule announced here. But whether it does or not, makes but little difference. The case itself is a plain perversion of the statute. It holds that a defendant, claiming ¡ specific tract of real property, cannot appeal from a judgment holding such property to be included in a mortgige, and stay the sale of the property claimed pending the appeal, without giving a bond to pay the mortgage debt; md this, notwithstanding he is not otherwise obligated to pay the debt, and notwithstanding the property claimed may be *447worth hut $100, while the mortgage debt may be $100,-000. If the statute means this, it is, in my judgment, unconstitutional as an unwarranted restriction on the right of appeal.
But it is said that the clerk was directed to1 pay this money over, and, had he appealed from the judgment, he would have been required to give a bond in double the amount of the judgment, and it is reasoned from this that the appellant should have given such a bond. But, unfortunately for the simile, the clerk could not appeal from this judgment. The fund is in the clerk’s hands because he is the officer of the court whose duty it is to keep such funds. The fund is, nevertheless, in court, and the clerk could no more appeal from a judgment determining which of two claimants is entitled to it than could the bailiff of the court, the sheriff, or the judge who presided when the judgment was rendered; the clerk is but one of the constituent parts of the court, and cannot be heard to question, anywhere, the validity of the orders of the court of which he is clerk, made in cases in which he is not a litigant. What, therefore, would be his obligations, had he the right of appeal, cannot be held-to measure the rights of the appellant.
ETor is the fact that the fund may be lost, pending the appeal, by the wrongful acts of the clerk, any reason for holding that the appellant should give a bond in double the amount of the money on deposit. It is not the policy of the law to require a litigant to guarantee the faithful performance of duties by public officers, as a condition precedent to his right to appeal to the courts. The law requires the clerk himself to give security that he will faithfully perform his duties, and it is to this security that a person, injured by his wrongful acts, should he compelled to look for redress. It should not be held that *448an appeal bond is intended as such security, unless the statute regulating appeals positively requires ¡ ueh a construction, and ours does not. In my opinion, the motion to dismiss the appeal should be overruled, ai d the case heard on its merits.