177 Iowa 542 | Iowa | 1916
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IV. The following express grants of power to the Supreme Court exist: It shall have power to issue all writs and process necessary to secure justice to parties, and to exercise a supervisory control over all inferior tribunals throughout the state. Constitution, Section 4, Article 5. It has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law. Code, 1897, Section 4100. It may issue all writs and processes necessary for the exercise and enforcement of its appellate jurisdiction. Code Section 4109. Aside from all this, the power to grant orders which will make the appellate jurisdiction effective and preserve the status, pending appeal, is
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There can be no very serious controversy over the power to make this order to the extent of commanding not to do certain things. But one of the distinctions asserted is that here there was mandatory relief, and that, while there may be power to prevent action, there is none to command action. In the cases of In re McKenzie, 21 Sup. Ct. Rep. 468, Forrester v. Boston & M. C. C. & S. Mining Co. (Mont.), 56 Pac. 868, McMichael v. Eckman (Fla.), 7 So. 365, and in Finlen v. Heinze (Mont.), 69 Pac. 829, the supersedeas or staying order commanded affirmative action. Aside from that, the scope of the writ may not thus be limited without, for all practical purposes, destroying its efficacy and blocking its vital purpose. The authorities seem to hold that the .power implies the right to use any instrumentality necessary to effect the object of the writ and the ultimate purpose of the jurisdiction. Finlen’s case, supra; Manning v. Poling, 114 Iowa 20, at 26, 27; Norris v. Tripp, 111 Iowa 115, at 120; Ex parte Milwaukee R. Co., 5 Wall. (U. S.) 188; Kent v. Mahaffy, 2 Ohio State 498.
Were we to limit this process on the lines suggested by movant, the question would not be whether, without interference, the status would be destroyed, pending appeal, and how this should be prevented. We would, on the theory of movant, have the right to prevent such result; but that right would be limited to injunctive relief, which would be inadequate to accomplish what we have the right, power and duty to accomplish. It would resolve itself into an inquiry whether
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Coming to the propriety of the writ, rather than the power to issue it: it is elementary that it should always be granted whenever the rule known as the “balance of conven
The discretion allowed was rightly used here. If Heins surrendered the property to intervener, Grossman, in lieu of the deposit ordered, Heins could not suffer a loss, no matter how the appeal was decided. He was bound to get every dollar awarded him, with interest. On the other hand, appellants might win, and, without this order, find themselves in possession of property worth half what it was when the appeal was instituted, when, if they had had the property, they might have avoided that loss; and would suffer this loss without remedy, because, though it be assumed, as claimed, that Heins is abundantly responsible financially, this would avail nothing, because, no matter how rich Heins is, he could not be made to pay for a loss due to the fall in market price of