Spaulding v. Milwaukee & Horicon R. R.

11 Wis. 157 | Wis. | 1860

By the Court,

Dixon, C. J.

It has been too long and too well settled to admit of doubt or controversy that an order oí a judge at chambers is Qf no effect until it is properly served on the opposite party, or his attorney. 2 Arch. Practice 896, and S97; 1 Bur., id. 349 and 350 and cases there cited. Therefore the order of the circuit judge made on the 13th day of April, suspending and modifying that of the 9th directing the sum in which the railroad company should give security for the purpose of staying proceedings on the order appealed from pursuant to section 2 of the act of 1859, was inoperative until the same was served. At the time the appeal was perfected and the undertaking was given, it had not been served, and a stay of proceedings was therefore regularly obtained according to the provisions of the act. Such being the case it only remains to be determined whether the circuit judge could, by a subsequent, order vacating or modifying the order under which the stay was thus perfected, conditionally or otherwise, deprive the company of the right, which they had thus acquired, to have all further proceedings under the order appealed from arrested, pending such appeal. Upon this question we are clearly of opinion that he -could not. The stay was a part of the appeal itself and took effect by reason of it, and by force of the statute, ahd not of the order fixing the amount of the undertakifig. The condition of the statute' being complied with, the appeal stayed the proceedings in the court below, and it was not in the power of that court or the judge thereof to do away with the positive provisions of the statute. That such is the correct construction of the statute, and that the stay of proceedings is to be obtained at the time of taking the appeal, and as a part of it, and cannot be obtained afterwards, is very evident from the provisions of sections 21 and 22 of chap. 139 of the Rev. Stat., to which the act of 1S59 chapter 139, laws of 1859 is an amendment. Section 21 provides for the service of a copy of the undertakings designed to secure a stay of proceedings, including the names and residence of the sureties, upon the adverse party, with the notice of appeal. Section 22 declares that the respondent may except toathe sufficiency of the sureties within ten days after notice of the appeal. These provisions sufficiently answer the position of the respondents’ counsel, that the stay and appeal are entirely distinct and separate proceedings, and that the former may be obtained at any time after the latter has been perfected, by a compliance with the requirements of section 15. These statutory provisions have received the same construction by the courts of New York. Insurance Co. vs. Safford, et al., 10 How. Pr. R. 344; Cushman vs. Martins et al., 13 id. 402.

It follows from the views we have taken that the proceedings in the circuit court, upon the order appealed from, are stayed by virtue of the appeal and undertaking given by the company pursuant to the order made on the 9th of April, and that no further order by this courtis required for that purpose-The rule to show cause must therefore be discharged; and inasmuch as no costs are asked by either party, none will be given to either.