I find myself unable to agree with the majority opinion in this case, and therefore I respectfully dissent. When the district court entered its decree on June 16, 1930, it provided for the event of an appeal and the posting of an unconditional supersedeas bond. Under the court's decree, an injunction should issue in effect in the event the appeal was not taken in which the unconditional supersedeas bond should be furnished. This requirement of the district court, as a condition precedent for the issuance of the injunction, was a scheme or method devised to work out justice in the particular occasion. So far as the questions involved on this appeal are concerned, the district court had a right to adopt that method of determining when the injunction should issue. As a part of that scheme the district court, as it had a right to do, defined the appeal and the kind of supersedeas bond required as a condition precedent to the issuance of the injunction.
Although the city of Fairfield appealed, it did not furnish the kind of supersedeas bond defined by the district court. It appears that the bond furnished did not require the city to pay the damages assessed if it elected not to take the property condemned. That evidently was not the kind of a bond defined and contemplated by the district court. Therefore the appeal taken and the bond furnished are not the kinds provided for and defined in the court's decree. Consequently, because the bond defined and contemplated by the district court was not given on the appeal, the injunction, under the scheme adopted by the district court, became effective. As a result, then, of the city's failure to post the bond contemplated and defined by the district court, the injunction immediately issued, and, as before said, became effective.
I would justify, therefore, the supplemental order of the district court at which the proceeding in certiorari is directed, under section 7851 of the 1931 Code. In that section is the following provision:
"The sheriff, upon being furnished with a copy of the assessment as determined on appeal, certified to by the clerk of the district court, may remove from said premises the condemnor and all persons acting for or under him, unless the amount of the assessment is forthwith paid or deposited as hereinbefore provided."
By commencing the condemnation proceeding, by filing the particular pleadings in the proceedings and assuming the attitude taken *Page 483 at the trial, the city, as condemnor, attempted to justify its possession of the property under the condemnation proceeding. Therefore it cannot now say that it does not have possession of the property under the condemnation proceeding. So far, then, as the supplemental decree amounted to an authorization to the sheriff to remove the defendant under section 7851, I would deny the writ. The rest of the supplemental decree is surplusage. Moreover, the supplemental decree can be justified under the theory of a writ of assistance. See 5 Corpus Juris 1315.
The writ, I think, should be annulled.
MITCHELL and KINTZINGER, JJ., join in dissent.