Woods

This is a proceeding based upon the provisions of section 772 of the Penal Code, for the removal of the defendant from the office of tax collector in and for the county of San Diego. The judgment was entered on October 2, 1889, depriving defendant of his office, and on the same day an appeal was taken therefrom to this court, and an undertaking in due form and with sufficient sureties was filed. On October 5th, following, the board of supervisors appointed Henry Weineke to fill the vacancy caused by the removal of defendant, and on October 7th the court below made an order directing the sheriff to put Weineke in possession of the office. A writ for the execution of this order was issued accordingly, and on October 7th the sheriff made return showing that he had installed Weineke. in the office of tax collector. On October 21, 1889, the appellant submitted a motion in this court for an order directing the court below to stay all proceedings herein during the pendency of the appeal. The motion is made upon the ground that the appeal which has been perfected operates as a supersedeas of all proceedings in the court below, and that the order of the court directing the sheriff to…

— I concur in the order denying the motion, for the reason that it would be a vain act now to grant the motion; but do not express any opinion as to whether or not the provisions of section 770 of the Penal Code apply to proceedings had under section 772.

Beatty, C. J., dissented.