94 P. 837 | Mont. | 1908
delivered the opinion of the court.
Mandamus. From the verified petition filed herein the following facts appear: On February 15, 1908, in the district court of Lewis and Clark county, Alvin Robinson, a minor, in an action brought by him through Wm. H. Hirst, his guardian, against the Helena Light & Railway Company for damages for personal injuries, had a verdict for $10,000, and judgment was duly entered thereon. On February 21st counsel for the corporation, having served and filed their notice of intention to move for a new trial, asked and were granted by the judge who tried the cause, and the defendant herein, forty-five days from that date in which to prepare, serve and file their bill of exceptions in support of their motion, and also a stay of execution upon the judgment until the motion could be heard and determined. No terms were imposed upon the defendant corporation in consideration of the stay by exaction of security or otherwise. Counsel for plaintiff resisted the granting of the stay, on the ground that the judge had no power to grant it without imposing terms, either by exacting security for the payment of the amount of the judgment in the form of an undertaking or bond, or in some other form, or, at least, without some sort of terms. They excepted to the order, and later moved the judge to set it aside so far as it granted the stay. The Motion having been denied, application was made to this court for a writ to compel the judge to vacate and set aside the part of the order complained of. On the return of the alternative writ counsel for defendant submitted a motion to quash it and dismiss the proceeding on the ground that the facts stated do not warrant the relief demanded. Upon the question thus raised the proceeding was submitted for final determination.
The assumption that the statute lodges the matter of stay in each case in the discretion of the judge is properly made-. "Within the limitations declared the court may stay a judgment pending a motion for a new trial, but the discretion is not arbitrary. Since such stay always results in delay, and may result in a defeat of justice, the power should be exercised with caution, and upon the exaction of some sort of security, except in-cases where the ultimate satisfaction of the judgment is otherwise assured. ' (1 Freeman on Executions, sec. 32.) In the absence of a stay order the owner of the judgment is entitled to execution at any time, as a matter of right, within six years from the date of its entry. Since this is so, and since there is danger, also, that the delay will defeat satisfaction of the judgment, the circumstances in each ease as they appear from the proceedings themselves or from the showing made upon the application must be such as to move the discretion of the court or judge; otherwise the application should be denied; for discretion cannot be exercised unless there be facts and circumstances to put it in motion. To grant a stay merely because it is asked for, without regard to the existent conditions, is an arbitrary and illegal use of power w'hich the statute does not confer.
But it does not necessarily follow that terms must be imposed in every ease. There are many different kinds of judgments, including personal judgments for money, judgments requiring
What terms shall be imposed in each case, or indeed whether the circumstances require the imposition of any terms other than those which are imposed by virtue of the proceedings themselves, is a matter to be governed by sound legal discretion. Within these broad limits the court or judge is free to act, and such action is conclusive in the absence of a showing of abuse. If the personal judgment is a lien upon a defendant’s unencumbered real estate sufficient to satisfy it, security may be dispensed with. So in mortgage foreclosures and the like, generally speaking, there has already been set apart by the parties themselves security for final satisfaction. If the judgment is for the recovery of real property, there is generally no necessity for security. If it be for the recovery of specific personal property, generally security for its safekeeping and ultimate delivery is necessary, if it has not already been given. If the instrument ordered canceled is of record, it cannot be disposed of so far as to defeat the ultimate relief decreed. So through the list of. particular cases that might be enumerated; and in every such case the trial judge will be presumed to have done his duty, and to have acted, in granting a stay, either upon knowledge within his possession gained from the proceedings themselves, or from a proper showing made when the stay order is demanded.
In this ease it does not appear what facts were shown to the defendant or were brought to his knowledge at the time the order was made. So far as we can judge from the statements in the petition, it may have been made to appear to him .that the defendant corporation has ample unencumbered real estate upon which the judgment is a lien. Assuming, therefore, that this court should, in a proper case, use the writ of mandamus to compel the requirement of security pending the motion for a new trial, the presumption must be indulged that the defendant regularly pursued his duty (Code Civ. Proc., sec. 3266), and that the order complained of was the result of the exercise of a wise discretion.
The motion to quash the alternative writ is therefore sustained. If the plaintiff desires to amend his petition so that it will supply the allegations of fact necessary to obviate the objection suggested herein, he may do so within fifteen days from this date. Otherwise the proceeding will be dismissed.
On Amended Petition.
delivered the opinion of the court.
Availing himself of the suggestion made in the opinion of this court in the disposition of the original application in this cause (State v. Clements, ante, p. 96, 94 Pac. 837), and the permission therein granted, the plaintiff on April 11th filed an amended petition in which, in addition to the facts alleged in the original petition, appears the following statement: “And that prior to the time said order last mentioned was made no fact or facts whatsoever were shown or brought to the knowledge of, nor was any showing whatsoever made to, the said district court or the said judge thereof, as to whether the said defendant in said action then was, or ever had been or is, the owner of any unencumbered real estate, or of any other unencumbered property whatsoever; nor was any statement or any showing whatsoever made to said judge, other than the mere verbal request of said defendant’s counsel, for a stay of execution for a period of forty-five days from the date of said application, in which to prepare, serve and file a bill of exceptions on motion for new trial; and pursuant to said request, and with no statement or showing other than said verbal request for said order staying execution, the said order staying execution was made as aforesaid. ’ ’
The defendant thereafter filed an answer, in which it is alleged, in substance, that it has been the practice in this juris
Under the construction of section 1175 of the Code of Civil Procedure of 1895, declared on the former hearing to be the proper one, the defendant could not, under the circumstances, grant a stay, for he had nothing before him on the application addressed to his judicial discretion to justify taking away from .the plaintiff the right to have execution under section 1210 of the Code of Civil Procedure. A course of practice founded upon a mistaken construction of a statute cannot have the force of law, no matter how long it has continued, unless there be a reasonable doubt as to the meaning of the particular provision upon which the practice is founded. Contemporaneous construction cannot abrogate a plain provision of law or fritter away its obvious sense. (State ex rel. Haire v. Rice, 33 Mont. 365, 83 Pac. 874.) The duty did not rest upon the successful party to furnish the facts necessary to move the defendant’s discretion. He was entitled to his execution, in the absence of a stay, and the stay could be granted only upon an application, supported by facts sufficient to move judicial discretion.
It is ordered that a peremptory writ issue directing the defendant to vacate and set aside the order granting the stay.
Writ issued.