I concur in the result reached in the decision in this case, but not upon the ground upon which the decision is based. It seems to me that the language of § 1409 is too clear for explanation, notwithstanding the provisions of § 270. But under the decision of this court in State, ex rel. Shannon, v Hunter, 3 Wash. 92, the judgment of the superior court in this case, though in form a dismissal of the action, was in fact a refusal to hear the cause, and therefore not a final judgment which is appeal-able. Therefore no supersedeas was proper, and the only remedy open to the petitioner was by mandamus to hear the cause. The latter proceeding would bring the complaint in the action before this court, and the question of jurisdiction would be directly determined.
Anders, O. J., concurs.