112 Wis. 482 | Wis. | 1901
The theory upon which this motion is presented is that, because appellants are prosecuting their appeal in good íaith and are willing to comply with any order the court may make to protect respondents in the event of a decision in their favor, the doing of the things complained of pending the appeal should be restrained as a matter of right. Reliance is placed on Janesville v. Janesville W. Co. 89 Wis. 159. This language was there used:
“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.”
That has often been referred to under circumstances such as those we have now to deal with, but it has never been supposed here to state a correct rule except as applied to facts similar to those before the court at the time it was uttered. Yiewed in the abstract, it must be unhesitatingly condemned; otherwise the discretionary power of the court would be entirely denied in such matters. To show that an application for a stay of proceedings in a cause pending an appeal is addressed to such power, in the absence of a statute creating an absolute right to a stay, we need but refer to the written law. While this court has inherent power to stay proceedings in a cause in a court of primary jurisdiction pending an appeal from some order there entered, and to place restraint upon the parties to the appeal so as to render the final result of the litigation, effective, the proper place, ordinarily, to apply for such relief in the first instance is in the trial court. The practice there is regulated by sec. 3060, Stats. 1898, in the following language:
“No appeal from an intermediate order before judgment shall stay proceedings' unless the court or the presiding judge thereof shall, in his discretion, so specially order.”
Circumstances may exist leaving no room for the exercise of judicial discretion in such a matter, other than in favor
As before indicated, the proper place to first apply for a stay of proceedings pending an appeal to this court is in the trial court. That was done in this case and resulted adversely to appellants. Under such circumstances a second application made to this court in effect calls for a review of the discretionary actidn of the lower court, to be decided substantially the same as if the review thereof were by direct appeal. That is, the subject should be left where the trial court left it, unless such court clearly abused its discretion. In reaching the conclusion, the merits of the appeal may properly be looked into for the purpose of determining
By the Oourt.— The motion is denied, with ten dollars costs.
On February 20, 1902, the- appeal was dismissed by stipulation.