Ruggles

Application for prohibition. Petitioner is the administrator of the estate of one Henry Welch, deceased, in course of administration in the department of said respondent superior court presided over by said Hon. J. V. Coffey, judge thereof. On February 16, 1894, an order was made and entered in said estate, directing petitioner, as such administrator, to pay to the widow of said deceased seven thousand three hundred and seventy-five dollars, as accrued and unpaid family allowance. From this order the administrator, on February 20, 1894, perfected an appeal to this court. Thereafter, the widow moved this court to dismiss said appeal, which motion was subsequently, on the fifth day of March, denied, and the appeal is still pending and undetermined. Subsequent to the denial of said motion, the respondent judge, on the seventh day of March, at the instance of the widow, caused a citation to be issued and served upon petitioner, requiring said petitioner to show cause before the respondent superior court, on the eighth day of March, 1894, why he should not be punished for contempt in failing and refusing to obey the order of February 16th, requiring him to pay said family allowance. On…

I dissent from the order denying a rehearing of this cause, and, having concurred at the time in the decision heretofore pronounced by the court, I desire to state the grounds of my present conviction that said judgment was erroneous. When the superior court has made an order or judgment from which there is no appeal, and which is therefore a final adjudication of the rights of the litigants, the prevailing party is entitled to demand the enforcement of such order or judgment, and it is not only the right, but the duty, of the superior court to accord the proper relief by the appropriate process. That court is.not relieved of such duty by the fact that the defeated party has attempted to appeal to this court, and thereby to stay the proceedings. When asked to enforce its order, and the fact is brought to its knowledge that an appeal has been taken or attempted, a question is then presented as to *130 its jurisdiction to proceed, dependent for its solution upon the further question whether the order is final and unappealable or not, and this question it must decide. If it should erroneously decide that the order is not appealable when it is appealable, then alone has this court the…