Rovegno

This is an application for a writ of mandate commanding the respondent herein, Hon. John Hunt, judge of the superior court in and for the city and county of San Francisco, to forthwith proceed to fix the amount of a bond to be given by the petitioner herein in an action pending in said superior court,- entitled Levins v. Rovegno, sufficient to stay the execution of the writ of assistance issued in said action.

Upon the petition filed, an alternative writ was issued herein, returnable on the thirteenth day of January, 1890. On that day respondent filed an objection to the sufficiency of the petition, and at the same time set up certain matters, most of which, however, appear in the petition.

*446 The objection to the sufficiency of the petition is well taken.

1. The interlocutory decree mentioned in the petition was given, made, and entered by consent of all the parties to the action, including petitioner. No appeal therefrom was taken by any party to the action, and the time for appeal has expired. Under that decree, which was entered under a stipulation of all the parties, Cerf was appointed sole referee to make a sale of the premises and report the same to the superior court.…

I concur in the denial of the application herein.