(concurring). I concur with my Brother Stone in the conclusion that, upon the showing made, the alternative writ in this case should be made peremptory for the following reasons:
1. So far as the trial court is concerned, the statute in question confers the right of appeal upon the unsuccessful party absolutely. As to whether or not a review in this way may take place, that court has no voice whatever. When a party has served upon his adversary, by copy, the requisite notice, and. filed the same with the clerk, the appeal is perfected. Nothing then remains to be done by that court or its officers in connection therewith, except for the clerk, upon proof of such service, and tender or payment of fees, to forward the transcript as directed by law.
2. A supersedeas is not essential to the appeal or review. It is an incidental and collateral privilege which *556appellant may or may not invoke. If the judgment or order from which he has perfected his appeal be for money only, save the discretion with reference to security, and command as to the undertaking embodied in section 24, the court has no voice or authority whatever in connection with the supersedeas. Upon tender of a bond for the proper amount, appropriately conditioned, and with sufficient sureties, appellant is entitled, as a matter of right, to have the same approved and filed by the clerk. If the judgment does not mention a sum certain, it may become the duty of the court to fix the amount of the undertaking which appellant shall file. But I cannot believe that when the statute denies the court any voice in determining whether or not the appeal will lie, it was intended that he should be permitted to refuse this request because there might, in his judgment, be no appealable order. To say that he can for this reason decline to fix the amount of the bond would be to admit that while he is powerless to deny the right of appeal and preclude a review, yet he may take from a party all the benefits of such appeal or review, by preventing the'issue of a supersedeas.
3. Unless I misread or misunderstand the statute, the clerk also has but little, if any, discretion. When a bond is tendered which he admits, as in the case at bar, to be sufficient in every particular, it is his duty to approve and file the same. He cannot be permitted to decline the. performance of this ministerial duty simply because, in his judgment, the order appealed from was not appeal-able. Whether or not an appeal lies in a given case is a judicial question, and if the clerk can decline to approve a bond because he may think the appeal was improperly taken, there is lodged in his hands judicial power. He is enabled to accomplish that which we say the court itself cannot do. He would often prevent appellant’s deriving, the full benefit of a reversal, when one is secured, by depriving him of the stay of execution sought.
*5574. I think the clerk should he required to perform his duty, in connection with the supersedeas, even though the appeal itself be afterwards dismissed by this court on the ground that there was no appealable order. For, if the trial court itself cannot pass upon the'right of appeal, and if the cleric has no voice in determining that matter,I cannot conceive how it may become an important question upon such applications as the one before us. When the clerk states, as the sole 'reason for his refusal to approve the bond tendered, that no appeal lies, and upon an application to compel such approval we rest our decision on the correctness of his finding, it seems to me that we thereby clothe him with the very function which the statute denies either to him or the court. The fact that no appeal lies, if such be the fact, does not excuse him from approving the bond. That is a question to be raised in a different way. When the legislature made the appeal so far an absolute right as to deprive the trial court of all discretion in the matter, they intended also to give, in the same manner, the collateral right to a supersedeas. It was the purpose of that body to allow, upon tender of a sufficient bond, a stay of proceedings, under the order or judgment, until the appeal itself was here either dismissed or determined upon its merits. In the case at bar, however it appears that the clerk, instead of acting upon his own judgment, declined to approve the bond because he understood the court to be of opinion that no appeal lay. As shown by the record, no judgment or order to this effect was made or entered by the court or judge; but if it had been, still I do not believe the clerk would be justified in his refusal; for, if the court be guilty of a clear usurpation of power,.the order resulting therefrom is illegal and void, and such void order constitutes no justification for the clerk’s refusal to perform a plain duty clearly devolved. upon him by law. In such case, if there be no other plain, speedy or adequate remedy for the party aggrieved, *558I believe that the performance of the duty ought to be coerced by mandamus.
Such is the situation here as to the remedy. The illegal action of the clerk is in no way reviewable. Appellant cannot invoke relief in this court by error. Under the .present, as under the former, practice, our writ of error does not issue except to a final judgment; and before proceedings on his appeal could be terminated, the evils appellant sought to avert by supersedeas would be suffered. I do not think that the proceeding mentioned in section 31 of the act, or appellant’s ultimate right of action for damages against an insolvent and worthless judgment creditor, who has sold appellant’s property under execution and placed the proceeds beyond his reach, is such an adequate remedy as will debar the proceeding by mandamus.
5. Such I believe to be a correct interpretation of the statute in question, according to its letter and spirit. But it seems to me that these conclusions are also supported by strong considerations of public policy. -If all the trial courts of the state whose proceedings may be brought here for review were at liberty to say that an appeal did or did not lie, there would .exist great confusion in practice. Under the law a large number of orders are made appealable. As to whether or not an appeal will lie from a particular order may be a close and perplexing question; consequently the various courts in the state would probably take different views of the same or similar orders; and in one section appeals would be allowed where, in another, they would be denied. This suggestion also applies to the clerks’ action in the approval of appeal bonds and allowance of supersedeas. One clerk would decline to approve a bond, upon the ground that the appeal was improperly taken; another clerk would hold the appeal warranted, and indorse upon the bond the requisite sanction.
The proposition that there should be but a single tri*559bunal to pass upon this question addresses itself strongly to my mind. I deplore ,the conclusion, because it must inevitably result in materially increasing the business of this court. A great many appeals will be taken, and a large proportion of our time for several months in the future must be occupied in determining motions to dismiss, based upon the ground that the particular orders were not appealable. But the’ interest of litigants, as well as the importance of uniformity in practice, demand that the doubt, if a doubt existed, should be resolved in favor of the exclusive jurisdiction of this court in the premises. ’
As will be observed, I venture no opinion concerning the appealability of the order referred to in this discussion.
No objection is presented to the bond here tendered on account of the sum named therein as a penalty. Such sum appears to be amply sufficient to more than twice cover all possible liability of relator in the premises. I therefore think, with Mr. Justice Stone, that, under the circumstances, the fact of there being no order of court fixing the amount of the underbaking in no way affects the views above expressed. Sharon v. Sharon, 8 West Coast Rep. 351.
Beck, C. J.The majority of the bench are of opinion that the demurrer to the petition should be overruled. In this conclusion I concur, but not in the reasoning by which this conclusion is arrived at. My concurrence is based upon a legal proposition of which I entertain no doubt under the present issue, viz., that the order from which this appeal is prosecuted is an appealable order. If it were a non-appealable order, then, in my judgment, the demurrer should be sustained; and I conceive it to be the duty of the court to determine this point before issuing the mandate sought. This . is not simply a question of the construction of a statute, but it involves the ap*560plication of an extraordinary remedy. It is my understanding of the law that the writ of mandamus ought not to issue unless the following jurisdictional facts be made to appear: First, a clear legal right in the party praying the writ to have the act performed for which he seeks the aid of the writ; second, a clear legal duty to act on part of the officer sought to be coerced; third, that the writ, when issued, will be effectual as a remedy. If this is an appealable order, then all these conditions exist; otherwise they do not.
Referring to the late statute on the subject of appeals in civil actions, I find it provides, in the first instance, from what judgments and orders appeals to this court may be taken. Neither a party to a judgment nor an officer of the trial court is authorized by that statute to take, any steps toward perfecting appeals, save in the cases made appealable by the statute. Should they, therefore, proceed and perfect appeals in unauthorized cases, this court would be without jurisdiction to entertain them. No litigant can say he has a right to have an appeal perfected, unless that right has been conferred upon him by statute. The statute was enacted for the benefit and' guidance of the people. Like all remedial statutes, it states the cases to which it applies; aud only those entitled to the benefit of its enactments have a legal right to take advantage of .them. It is illogical to say, because a litigant who may be entitled to an appeal is authorized to perform the initiatory steps himself, as the serving of notice of an appeal, that persons against whom judgments or orders not appealable are entered may, by pursuing the same steps, have an appeal to this court. If such a person should succeed in getting the record of a cause transferred to this court, he would have here an illegal proceeding, — one to which he could show no statutory right, — and wholly ineffectual to him as a remedy. To hold otherwise would be to say that, after restricting the'remedy by appeal within certain defined boundaries, *561and after limiting the appellate jurisdiction to cases falling within the limitations prescribed, the legislature then enacted an inconsistent provision which authorized appeals to be taken and perfected in all cases, irrespective alike of the specifications previously made, or of the jurisdiction previously conferred on 'the appellate court. It would also follow, as a result of such inconsistent provision, that the officers of the trial courts would .be bound to assist litigants in perfecting appeals to the supreme court in cases made non-appealable by the statute, and over which this court would not be vested with appellate jurisdiction.
In my judgment such is-not a correct interpretation of the statute under consideration. On the contrary, my view is that all its remedial provisions are limited to the cases wherein appeals are provided for, and to no other cases. And if this be true, then whether a judge be called upon to fix the amount of a bond intended to operate as a stay of proceedings, or a clerk be requested to approve a similar bond wherein the amount of the penalty and the sureties therein are both sufficient and satisfactory, if the case be non-appealable, no legal obligation rests upon either officer to perform the act demanded. The statute is their guide. It is also a guide to all who have duties to perform in relation to the subject-matter of appeals, whether those duties be ministerial or judicial. Ministerial officers have no discretion as to their duly-prescribed duties; but the rule goes no further. If a demand be made upon- them to -perform acts falling outside their duties as prescribed by statute, they are under no' obligation to perform them. The books say that such officers cannot be compelled, by mandamus, to perform-acts not falling within the duties so prescribed. They say-mandamus is the appropriate remedy to enforce the performance of an official duty clearly enjoined by statute; but, to entitle the relator to the writ as against a public officer, he must show a clear right to the performance of *562the thing demanded. An officer whose duties are ministerial is not a machine, but a reasoning being, whose duties are prescribed and limited by law; and while they are denominated ministerial duties, they partake so far of a judicial nature as to require the exercise of his judgment in every instance before he performs or refuses to perform the same. If he refuse to perform, and the duty to perform exists, he may be coerced by mandamus; but if his judgment be correct in such refusal, and for any reason the supposed duty does not exist, I understand the rule of law to be that he will not be compelled to perform it. Another rule is the familiar one that the writ will not issue where there is another plain, speedy and adequate remedy in the ordinary course of law.
In the application of the foregoing principles to the case before us, the first inquiry is: Has the relator a clear legal right to the performance of the act demanded; that is, to have the supersedeas bond which he tendered approved? If the right exists it is a statutory right, and necessarily depends upon his right of appeal. Believing, therefore, that the order appealed from falls legitimately within the list of appealable orders, and being substantially a money judgment against him, this inquiry must be resolved affirmatively.
Second. Does a clear legal duty exist on the part of the clerk below to approve the bond tendered? It follows from the preceding proposition and answer, from the provisions of the statute, and from the return on the bond, that the predecessor in -office of the present respondent erroneously refused to approve the bond.
Third. Will the writ, when issued, prove effectual as a remedy? It will effectuate all that is demanded: a stay of proceedings in the district court until the order appealed from can be reviewed in this court. This is a sufficient remedy.
Fourth. Is there any other plain, speedy and adequate remedy in the- usual course of law? This is the only *563question about' which I entertain a doubt; but since no other adequate remedy is plainly given by statute, or has been announced by the decisions of this court in like cases, I think the answer should be in the negative upon this application. Por the reasons above given the demurrer should be overruled.
Demurrer overruled.