213 P. 361 | Wyo. | 1923
The above numbered cases, here on appeal, have been heard together upon two motions; one to consolidate the causes for hearing and advance the hearing thereof in this court, and the other for an order by this court staying execution in each case pending the appeal, upon the appellant’s giving bond in such reasonable time and reasonable sum as may be fixed by the court conditioned as provided by law, and restraining the enforcement of the judgment appealed from during such reasonable time.
No objection was offered to the motion to consolidate and advance the hearing of the causes, but counsel for appellee announced their readiness to join in a request for an order to that effect. The reasons stated in the motion appearing to be sufficient to justify it, an order will now be entered consolidating the causes for hearing, and when they are
The several causes are here under the statute providing for a direct appeal as distinguished from proceedings in error, for the review of money judgments rendered against the appellant as an alleged guarantor of certain notes; tne appellant having been joined as a defendant in each action with the maker or makers of the note or notes upon which the action was brought, the plaintiff in each case being the same — The Farmers State Bank of Riverton. Although the motion to stay execution does not indicate a purpose that the bond to be provided for in such an order shall be limited to a sum less than the amount of the judgment or that might be deemed a proper amount in such a bond standing alone to secure the payment of the judgment, it was suggested upon the argument, for reasons presently to be stated, that the bond to be required by such an order of this court should be merely for a nominal sum. And we understand the purpose of the motion to be to obtain an order of this court staying the enforcement of the judgment in each case upon the giving of a bond for a nominal sum, it having been conceded at the argument that an order had been entered by the District Court before the appeal was perfected providing for a stay of execution in each case upon the giving by the appellant of an undertaking or bond in a sum equal to the amount of the judgment plus $100; the last named amount having been included to cover costs. Such order of the District Court does not seem to be included in the record here, but there is in the record a notice for the hearing of an application to be made by the appellant to the District Court for such an order.
The grounds upon which it is contended that the appellant should be permitted to give a bond in a much smaller sum in each case than that fixed by the District Court are substantially as follows: That the principal assets of the appellant, which is a corporation organized under the laws of Utah, consist of farm lands in Fremont County in this
The motion here is supported by several affidavits showing the value of the lands to approximate the value stated in the motion, upon which it is argued that the plaintiff and appellee is already sufficiently secured by said attachment and execution liens. The motion is contested on the ground, first, that this court is without jurisdiction to grant the stay for the reason that the statute provides the only method, citing Laughlin v. King, 22 Wyo. 8, 133 Pac. 1073, and
The case of Laughlin v. King, supra, was in this court under the provisions of the statute relating to proceedings in error, which was then and for many years had been the only method of review in this court of a judgment of the District Court until the enactment in 1917 of the statute providing for the so-called “direct appeal,” as a separate and independent method of reviewing civil and criminal cases in this court. And the only statutory provisions for staying execution pending such review in this court were those referred to in that case, viz., §§ 5116 and 5124, Comp. Stat. 1910, now respectively §§ 6378 and 6386, Comp. Stat.
Considering only those two sections of the statute, it was said in Laughlin v. King that where the judgment is for money only “neither this court nor a judge thereof is authorized to fix the terms on which execution will be stayed, the statutes having otherwise prescribed the method for so doing.” And an order of the Chief Justice for such stay made after the proceeding in error had been commenced was held to have been inadvertently made. The court cited Hyde v. Bank, 49 O. St. 60, 34 N. E. 720, and quoted from it a statement to the effect that upon the affirmance in the circuit court of a judgment of a court of common pleas for money only, the judgment debtor is entitled to a stay of execution upon giving an undertaking to the acceptance of the
The decision in the case of Laughlin v. King, was no doubt correct upon the facts in the case, for as shown by the opinion, the court held that when the stay order was made in this court, the appellant had then the right to stay execution, without such an order, by filing an undertaking in the District Court in a sum to be fixed by that court or the judge thereof under the provisions of Sections 5116 and 5117, Comp. Stat. 1910, (§§ 6378 and 6379, C. S. 1920,) the precise point so decided being that the plaintiff in error had the right, on commencing his proceedings in error, to stay execution by complying with the provisions of Sec. 5116, notwithstanding that an undertaking had been given but without an order fixing the penal amount and the expiration of the 90 day period mentioned in Sec. 5117. And the holding in that respect accorded with the court’s previous construction of those sections upon an ex parte application under like circumstances which had been announced without written opinion. But the court may have gone too far in declaring, without qualification, if that was intended by the language used, that such an order of this court would not be authorized in any case where the judgment sought to be reviewed is for money only; and we are inclined to the view that the decision must be understood as limited to the facts in the case, if not modified to the extent that it may not be in harmony with the present views of the.court herein expressed. The question is not so much one of authority or jurisdiction, as the propriety of its exercise in a particular case.
The provisions for staying execution found in the direct appeal statute are not so exclusive in terms as those considered in Laughlin v. King. Without the use of negative words they require merely that upon proper application the District Court or judge shall order a stay of execution for the time necessary to perfect a desired appeal, and de
More, recently than the decision in Hyde v. Bank, supra, the Supreme Court of Ohio has held that a court has authority to make any judicial order which, from the nature of the case, may be necessary to the effective exercise of its jurisdiction, whether original or appellate, and said, in that connection: “Authority to determine * * * implies power to make all such orders as may be appropriate to the case presented and necessary to give practical effect to the final judgment, as well as to preserve the subject of the action, pending the final determination of the case.” (State v. Board, 70 O. St. 341, 71 N. E. 717.) The statutes of that state seem to provide also that the Supreme Court may issue a writ of supersedeas in any case, and other writs not specially provided for and not prohibited by law, when necessary for the due administration of justice throughout the state. (See Whittaker’s Ann. Civ. Code, 7th Revised Edition, p. 11; 8th Revised Edition, p. 12.) And under that provision said Supreme Court, in an unreported ease, granted a motion for a new supersedeas bond to be given in the circuit court from which the case had come for review,- upon a showing that the surety upon the bond originally given had become insolvent. (See Ohio Sup. Ct. Proc., by Wilkenson & Chittenden, 1912 Ed. 324.)
This court has granted supersedeas, as well as an injunction upon the giving of a prescribed bond, but not, as we recall, in any case like the present, where an adequate
In Hyatt v. Allen, supra, one of the California cases cited above as having construed the constitutional provision of that state granting power to issue writs in aid of appellate jurisdiction, it was said also: “In the absence, however, of any specific prohibition in the Constitution, the court would undoubtedly have the power to issue all writs necessary to the complete exercise of its appellate jurisdiction. ’ ’ It is said in the Wisconsin case of Janesville v. Water Co., supra:
“This court has the inherent power, by virtue of its appellate jurisdiction, to grant the order applied for, and to*332 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. # # * Appeals from orders and judgments, in the eases 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.1 ’
The U. S. Supreme Court, in the McKenzie ease above cited, said, referring to the decision in a previous case: ‘ ‘ Even if the language used be given this scope beyond proceeding with the main case, it nevertheless does not interfere with the inherent power of the appellate court to stay or supersede proceedings on appeal from such orders as those here. Tested by the principles and rules which relate to chancery proceedings, the power of the appellate court to render its jurisdiction efficacious, the court below refusing to do so, is unquestionable. ’’ In McClatchy v. Sperry, supra, the California court said: “It is well settled that we can order a stay upon the filing of a sufficient bond in this court. Hill v. Finnigan, 54 Cal. 493, establishes the' practice and it has been followed in numerous subsequent cases. Of course, it is necessarily implied that a bond so filed will protect the respondent. ’ ’ And the court approved a tendered bond “subject to any exception that the respondent may take within 10 days after notice of this order, ’ ’ directing that in the meantime, and until the further order of the court, ‘ ‘ all proceedings upon the judgment appealed from are stayed. ’1 (And see Hale v. Silver Min. Co., 122 Calif. 56, 54 Pac. 270.)
The appellate court’s power in that respect, however, should be exercised only when necessary to a full and com-
Nothing having been stated to the contrary, we assume that the appeal in each of the eases here under consideration was taken and perfected within the time required by the statute and that the defendant and appellant may yet obtain a stay of execution or of further proceedings under it by giving the statutory bond in each case in the District
While the section of the direct appeal statute providing for a stay of execution pending appeal seems somewhat peculiar in that it provides first for an order granting a stay for such time as may be necessary to perfect the appeal, and for that period apparently either with or without bond, and then in prescribing the condition of a bond when required, makes it include an obligation to abide and pay the judgment and costs in case the appellant is unsuccessful, and provides that such bond, when given, shall continue' in force and operate as a stay pending the appeal, such provisions must be understood as intending that the bond shall in terms and effect be sufficient as an obligation to pay the judgment without compelling a resort to a levy or sale of property under execution. And that, we think, is a substantial right of the appellee of which he should not be deprived, whether or not the property he may levy upon shall be sufficient to secure the payment of the judgment. Nor should the court be called upon to determine whether or not property so levied upon will in the end be sufficient to amply secure the payment of the judgment.
The amount of the undertaking or bond fixed in the District Court’s order in these cases was not excessive or unreasonable, and we would not be inclined to prescribe a less amount for an undertaking or bond in either of the cases here. For that reason, and with the understanding that the order of the District Court will permit the giving and