I dissent from the order denying a rehearing of this cause, and, having concurred at the time in the decision heretofore pronounced by the court, I desire to state the grounds of my present conviction that said judgment was erroneous. When the superior court has made an order or judgment from which there is no appeal, and which is therefore a final adjudication of the rights of the litigants, the prevailing party is entitled to demand the enforcement of such order or judgment, and it is not only the right, but the duty, of the superior court to accord the proper relief by the appropriate process. That court is.not relieved of such duty by the fact that the defeated party has attempted to appeal to this court, and thereby to stay the proceedings. When asked to enforce its order, and the fact is brought to its knowledge that an appeal has been taken or attempted, a question is then presented as to *130its jurisdiction to proceed, dependent for its solution upon the further question whether the order is final and unappealable or not, and this question it must decide. If it should erroneously decide that the order is not appealable when it is appealable, then alone has this court the power to interpose by prohibition, and arrest its process. No one denies the truth of this proposition as applied to a case where there has been no motion made in this court to dismiss the appeal upon the ground that the order is nonappealable, but because in this case the prevailing party in the superior court raised the question here by a motion to dismiss, which was disposed of without any decision of the question involved, a distinction is made, and it is held that the superior court is exceeding its jurisdiction in enforcing the order in question, whether it is final and nonappealable or not; in other words, that it is exceeding its jurisdiction in enforcing an order which it holds to be final, and which we have never held, do not now hold, and may never hold, to be appealable. For it should be understood—a fact which does not clearly appear from the opinion of the court—that the order overruling the motion to dismiss the appeal was made expressly without prejudice, which, whatever else it may or may not mean, certainly does mean that the question involved in the motion was left open and undecided—that is to say, the motion was disposed of and taken as completely out of the case for all purposes as if it had never been made, but the question whether the order of the superior court is final or appealable was left at large—neither party was estopped—nothing was foreclosed. Such being the case, the party claiming the benefit of the order, having been turned out of this court without a decision of a question which undoubtedly he could have presented in the first place to the superior court, returned to that tribunal, and demanded the enforcement of its order, a right to which he is clearly entitled if it is final. I can see nothing in the proceedings here *131which relieved the superior court of the duty of hearing and determining the question so presented. The fact that we were “ entertaining the appeal ” is no answer to this proposition. It might just as truly, and with as much meaning, have been said that we were “entertaining the appeal ” if no motion to dismiss it had ever been made. We are always entertaining appeals in cases in which no motion to dismiss has been made, and in which there is a question whether the order or judgment of the lower court is appealable or not. In all suuh cases, the question of our jurisdiction is pending and undetermined in the same sense and to the same extent that it is pending and undetermined in .this case. But no one would contend for a moment that in such a case we could properly prohibit the enforcement of the order appealed from without determining that it was appealable, for unless we did hold it appealable, we could not say that the lower court was exceeding its jurisdiction. If a proposition so plain needed authority to support it, such authority is found in the case of Tyler v. Connolly, 65 Cal. 28.
In every appeal in which a question may be raised as to the finality of the order or judgment of the lower court, that question must be ultimately decided here, but upon the question of enforcing the order or judgment pending the appeal, the lower court not only can but must decide in the first instance whenever its decision is properly invoked. This court may decline to decide the question upon a preliminary motion and in the absence of a full record, as was done in this case, but when it chooses to take that course (disposing of the motion, but reserving the right upon the final submission of the cause to consider the question of jurisdiction then, and meantime leaving it undetermined), the case is put in precisely the. same condition as if the motion had not been made, and no valid distinction can be raised by the suggestion that we are “ entertaining the appeal.”
*132For these reasons I am of the opinion that until we are prepared to say that an appeal lies from the order of the superior court, we have no right to prohibit its enforcement.