City of Janesville v. Janesville Water Co.

89 Wis. 159 | Wis. | 1895

PiNNey, J.

It is neither necessary nor proper to enter at this time upon a consideration of the merits of the defendant’s appeal, further than to observe that it appears to have been taken and is prosecuted in good faith. It appears to present questions proper to be considered and decided by this court. We are not advised of the ground of the refusal of the circuit court to grant the stay sought by the defendant, on terms, further than that it is contended that to grant or refuse it was a matter entirely within the discretion of the court. This court has the inherent power, by virtue of its appellate jurisdiction, to grant the order applied for, and to restore the parties, so far as may be, to their condition in respect to the matters affected by the order at the time it was granted. This has been held in many cases, and in Northwestern Mut. L. Ins. Co. v. Park Hotel Co. 37 Wis. 131, the authority of the eourt to grant the relief sought by this motion is clearly and vigorously enforced. To the same effect are the cases of Hudson v. Smith, 9 Wis. 122, and Levy v. Goldberg, 40 Wis. 308, and since then this power has been exercised in numerous unreported instances. Appeals from orders and judgments, in tbe cases allowed by law, are a matter of right; and within the limitation that ■the appeal is taken and prosecuted in good faith, and that the party asking it gives the reasonable security required for that purpose, a stay of proceedings during the pendency of an appeal is quite of course, and really a matter of right, without which an appeal allowed by law would often prove fruitless and the appellate jurisdiction of the court be found inadequate to the ends of justice and the proper protection of the rights of parties during the pendency of the appeal.

By the Court. — -Upon giving security in the sum of $10,000, in the form of a bond with sufficient sureties, conditioned for the proper performance of the duties of the water company defendant in supplying water to the city and its inhabitants according to the provisions of the ordinance set forth in the complaint, to be approved by the judge of the circuit court or county judge of'Rock county, all proceedings under the order appealed from will be stayed during the pendency of the appeal, and upon filing such bond the receiver shall deliver to the defendant company any property or funds of which he may have taken possession as such.