(dissenting).
The action is on contract. A consideration of the liability of a municipality for injury which it occasions in the discharge of its governmental functions is not helpful. The situation is clearly and fully stated in the prevailing opinion. It was just this: In the mandamus proceeding the city was defeated. The plaintiff was entitled to a peremptory writ. The defendant wanted to appeal and wanted a stay. The common council, by a formal resolution, authorized the city attorney to appeal and to procure a supersedeas bond, unless the plaintiff would consent to waive it. The purpose of the bond was to get a stay. The plaintiff waived the bond, upon request of the city, retaining by the terms of the' stipulation the right to his costs and damages as if a supersedeas bond were given. A stay was entered.
The understanding between the plaintiff and the city was definite. There was to be no supersedeas bond, but the.plaintiff was to have his *236damages from the city, in the event of an affirmance, just as if there were. There was no lack of consideration. Each was giving and each was getting. There was no question of the city attorney’s authority to procure a waiver of a supersedeas bond and enter into the stipulation. The council gave authority. There was no question of fact for the jury upon the meaning of the stipulation, or of the sufficiency of the consideration for it, or of the authority of the city attorney. If the jury is right, the plaintiff sustained damages by the appeal amounting to $930. The 'city agreed to pay. By the repudiation of its promise, now sanctioned, it escapes liability and the plaintiff bears his loss. This seems to me all wrong and so I dissent.
On December 19, 1919, the following opinion was filed:
Per Curiam.
In denying the respondent’s application for a rehearing in this case, we take occasion to call attention to the last clause of section 8237, G. S. 1913, where it is provided that no appeal bond need be given by a municipality in appeals to the supreme court. We adhere to the holding that neither a municipal corporation nor its officers are lialble for damages suffered in consequence of judicial proceedings conducted by or in behalf of the municipality in the exercise of its governmental functions.