¶1dissenting.
¶2I dissent. Writs of habeas corpus are generally processed rapidly and therefore, like the majority, I necessarily write superficially rather than from the research this case warrants.
¶3This writ involves a challenge to an order of civil contempt under ORS 33.020(2), which provides:
"In addition to the punishment provided for in subsection (1) of this section, the court or judge shall have power to constrain performance of any lawful order, judgment or decree of such court or judge, by imprisonment of the person failing or refusing to comply, until the order, judgment or decree has been complied with.”
¶4Appeals in contempt cases are authorized by ORS 33.150, which provides:
"Either party to a judgment in a proceeding for a contempt may appeal therefrom, in like manner and with *548like effect as from a judgment in an action, but the appeal shall not stay the proceedings in any other action, suit or proceeding, or upon any judgment, decree or order therein, concerning which or wherein such contempt was committed.”
¶5The first issue, which the majority fails to address, is whether an order of civil contempt to constrain performance of a lawful order is a "judgment in a proceeding for a contempt” from which an appeal can be taken. It certainly has few attributes of a judgment. For example, it cannot be levied upon and an effective supersedeas bond can hardly be imagined. I do not believe we can assume that plaintiff’s appeal is from an appealable judgment.
¶6Next, a judgment in a contempt case is not like a judgment in a law action. ORS 33.150 regulates appeals in contempt cases. It does not say that the civil appeal statutes are applicable; indeed, there is no cross reference to specific statutes. Particularly there is no reference to the undertaking statutes. Rather, it provides only that contempt appeals are to be taken "in like manner” to appeals in actions at law.
¶7Actions result in judgments for money or property. In the appeals of actions, ORS 19.040 and 19.050 provide for the protection of respondents by requiring undertakings for the consequences of appellant’s non-compliance during the appeal. ORS 19.040(1) lists those certain instances peculiar to actions in which undertakings are required.
¶8The requirement that contempt appeals be maintained "in like manner” calls for procedure in contempt appeals which is generally analogous to civil actions, but which also takes into account the differences between the two types of case. In other words, "in like manner” refers to similar procedure insofar as there can be like manner.
¶9ORS 19.040 and 19.050 allow stays in civil cases where the respondent can be protected from the consequences of the appeal by an undertaking. Analogously, in contempt cases involving the payment of money or ascertainable injury, such an undertaking may "in like manner” be sufficient to justify a stay. Cf. In re Vinton, 65 Or 422, 132 P 1165 (1913). Other comtempt orders, however, involve personal actions which cannot be translated "in like *549manner” into fiscal undertakings. This is such a case. The fact that ORS 19.040(1) does not list orders to yield custody of children means only that there is a difference and there can be no "like manner” of staying the order by posting a further undertaking. The absence of a procedure entitling the civil contempt appellant to a stay is implicit, but not articulated, in Blair v. Blair, 199 Or 273, 279, 247 P2d 883, 260 P2d 960 (1953), where we said:
" … In the case at bar we hold that the operation of the order changing the custody of the minor children was not stayed by the giving of the notice of appeal and cost bond. To rule otherwise might in some future case have tragic results, leaving a child in the custody of an unworthy person for the period of the appeal, and leaving the cotut helpless to protect its own ward.”
¶10I therefore conclude that there is no provision under ORS 33.150 for stays in an order such as this.