Boynton v. Church

148 Iowa 197 | Iowa | 1910

Ladd, J.

Upon entering the decree in the district court in Boynton v. Salinger, 147 Iowa, 537, the defendant as presiding judge caused to be inserted the following clause: “Process upon this decree is to be suspended, and no sale is to take place pending appeal, provided that appeal be perfected within thirty days after the entry of this decree.” Thereafter a motion to expunge the clause from the decree was overruled. It is contended in this proceeding that in inserting said clause the trial court exceeded its jurisdiction. The effedt of the order was upon ajipeal to supersede the judgment without bond. That the ruling was erroneous must be conceded. Carroll v. Reddington, 7 Iowa, 386; section 4128, Code. An appeal does not operate to stay proceedings on the judgment appealed from save upon the execution of a supersedeas bond. Section 4128, Code. “If a party has perfected his appeal and the clerk of the lower court refuses to ajjprove the bond or requires an excessive penalty, or unjust or improper conditions, he may apply to the district court or judge thereof who shall fix the amount and conditions of the bond and approve the same. Pending the application, the judge may, by written order, recall and stay all proceedings under tbe order or judgment appealed from until the decision of tbe application.” Section 4132, Code. Tbe following section authorizes 'the district court rendering tbe judgment or order appealed from on motion to discharge ■ tbe bond for defect in substance or insufficiency in security. Section 4134 provides that: “If tbe judgment or order is for tbe payment of money, tbe penalty shall be in at least twice tbe amount of tbe judgment and costs. If not for tbe payment of money, tbe condition shall be to save tbe appellee harmless from the consequences of taking tbe appeal, but in no case shall tbe penalty be less than one hundred dollars.”

These sections clearly authorize the district court to supervise the execution of supersedeas bonds, and, power to do so having been conferred, the exercise thereof is not without jurisdiction, even though tbe order or ruling in a particular case may have been erroneous. In staying process on tbe decree in violation of tbe statute, tbe district court erred; but, as tbe order was within its jurisdiction, and there was a plain, speedy and adequate remedy by appeal, tbe error was not reviewable by certiorari. Denmead v. Parker, 145 Iowa, 581. In tbe absence of statutory regulations, it may be that tbe matter of staying proceedings pending appeal is discretionary. Ex parte Epley, 10 Okl. 631 (64 Pac. 18); 2 Cyc. 891. But not so yhere precisely what is requisite to stay process is prescribed by statute. Winter v. Coulthard, 94 Iowa, 312, merely recites tbe effect of an order without approving it; tbe syllabus being misleading in this respect.

Tbe petition is dismissed.