Gamet v. Allender

208 N.W. 782 | S.D. | 1926

BÍURCB, C.

The above-entitled action is now pending before this court on appeal, and respondent seeks an order of this court vacating an order of the circuit court staying proceedings, unless appellants shall give an addition undertaking in the penal sum of $10,000. The action was commenced in the circuit court of Fall River county to’ foreclose a real estate mortgage. The trial court rendered judgment in favor of respondent, and on application of appellants fixed the amount of a supersedeas bond to stay proceedings on appeal in the sum of $4,500, conditioned to pay any deficiency which may arise on the sale of the real property involved. The additional bond is sought, not because of any defect in the bond given, or because of the insolvency of the sureties, but solely because it is claimed the amount fixed by the trial court is not sufficient in amount to secure respondent, in the event of the affirmance of the judgment. No objection was made to the sufficiency of the amount of the undertaking at the time it was given, but it is claimed to be insufficient now" because of delay in ¡perfecting the appeal and obtaining a decision in this court. The jurisdiction of this court to make the order is challenged. There is no' express statutory provision conferring such jurisdiction.

It has long been recognized that an appellate court has inherent power to preserve the status quo pending the appeal, and may without express statutory authority in a proper case stáy proceedings pending appeal. It is not so well settled that an appellate court may vacate an order of an inferior court staying proceedings. The power is recognized in the case of Bock v. Sauk Center Grocery Co., 110 N. W. 257, 100 Minn. 71, 9. L. R. A. (N. S.) 1054, 10 Ann. Cas. 802, but in that case the supersedeas sought to be vacated was a bond staying an injunction. Vacating the stay hadi the effect to preserve the status quo. In another case the Minnesota court temporarily remanded the case to the district court because the bond was insufficient in amount; it appearing that the penalty was so “manifestly insufficient in view of the amount of the verdict as to justify the inference that it had been approved inadvertently.” The court, in discussing this case in Bock v. Sauk 'Center Grocery Co., concludes that to remand to the district court temporarily is a clumsy remedy, and not necessary, as the Supreme Court has power to effect the remedy without remanding. The power of the Supreme Court to require an additional bond, or an amendment, has often been recognized, where the original bond was defective, or -furnished inadequate security by reason of the subsequent, insolvency of the sureties. Our statute (section 3162) expressly confers jurisdiction on this court to require an additional bond, where the sureties have subsequently become insolvent, but no such right is given this court by statute to increase the penalty of the bond.

The Supreme Court of California in Jameson v. Chansler-Canfield Midway Oil Co., 16o P. 1066, 173 Cal. 612, in commenting upon a similar statutory provision, says:

“The statute so providing, we necessarily have a 'statutory denial of power’ as to any tribunal to affect the stay given by the law.”

Section 3156, R. C. 1919, provides for a stay in this class of cases upon giving an undertaking as therein provided in the amount fixed by the trial court. We think, when this. is done, the stay is final, except where otherwise provided by the statute. It does not appear that the lower court acted inadvertently, made a mistake, was misled, or that any fraud was practiced upon the trial court, and its action therefore became a final adjudication of the amount necessary to protect the right of the respective-parties. The amount having been fixed and the undertaking having been given, and no special circumstances of fraud, inadvertence or mistake appearing, this court is without jurisdiction to require an additional bond or to vacate the sta)r fixed by law.

The application is therefore denied.

SHERWOOD, J.j not sitting.