Bonde v. Stern
| Decision Date | 04 March 1943 |
| Docket Number | 6882. |
| Citation | 8 N.W.2d 457,72 N.D. 476 |
| Court | North Dakota Supreme Court |
Rehearing Denied March 15, 1943.
Syllabus by the Court.
1. An appeal does not operate as a stay of execution or performance of the judgment or order appealed from (C.L.1913 §§ 7825-7833), unless the appeal is one taken by the state or a state board, in a purely official capacity, or a municipal corporation within the state. C.L.1913, § 7834.
2. Stay of proceedings pending an appeal is an independent collateral proceeding, and the appellate proceeding proper remains wholly unaffected thereby. Absence of such stay, or defects rendering the stay order invalid, do not affect the right of the appellant to a review of the judgment or order appealed from.
3. Under the laws of North Dakota it is the trial court that is vested with authority to fix the amount of a stay bond and the conditions on which a stay may be had pending appeal to the supreme court in all cases where the amount of a stay bond or the conditions on which a stay may be had are required to be fixed by a court; and it is only "when the court or the judge thereof from which the appeal is taken or desired to be taken shall neglect or refuse to make any order or direction not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal", that "the supreme court, or one of the justices thereof" may make "such order or direction." C.L.1913,§ 7836.
4. An order overruling a demurrer to a complaint is appealable (C.L.1913, § 7841, subd. 3); and a defendant in a civil action has an absolute and unconditional right to appeal from an order overruling his demurrer to plaintiff's complaint; but he does not have such right to a stay of enforcement of such order pending appeal.
5. Whether there shall be a stay of proceedings pending an appeal from an order overruling a demurrer to a complaint is a matter within the discretion of the trial court. The trial court may order a stay, and prescribe the conditions on which the stay shall become effective, and as a part of such conditions he may order that the appellant furnish an undertaking in such sum and to such effect as the exigencies of the case warrant. C.L.1913, § 7832.
6. A stay order may be vacated for good cause shown. The application to vacate should be made to the court which ordered the stay; and where a district court has ordered a stay of proceedings under section 7832, C.L.1913, application to vacate the stay should be made to the district court, it should not be made to the supreme court, in the first instance. Moore v. Booker, 4 N.D. 543, 62 N.W. 607 distinguished.
7. Where the district court as a condition for stay of proceedings pending an appeal from an order overruling a demurrer to a complaint required appellant to furnish a bond in a designated sum and to a specified effect, the stay order is not rendered invalid by the fact that notice of application for the stay was not given to the adverse party as prescribed by section 7836, C.L.1913; but the stay order will remain in force, and be deemed binding and effective until it is set aside.
8. An order staying proceedings pending appeal from an order overruling a demurrer to a complaint suspends the right of the plaintiff to proceed on the complaint, and he is not entitled to have defendant adjudged to be in default and to have judgment rendered in contravention of the stay order.
Cupler, Stambaugh & Tenneson and Nilles, Oehlert & Nilles, all of Fargo, for appellants.
Conmy & Conmy, of Fargo, for respondents.
The plaintiffs seek a review of certain rulings of the district court incident to and arising out of a stay of proceedings on appeal from an order overruling a demurrer to the complaint. The facts necessary to an understanding of the controversy are as follows: The plaintiffs brought action to recover money judgment against the defendants. The defendants demurred to the complaint on the grounds that several causes of action have been improperly united and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer came on for argument and on December 18 1942, the trial court entered an order that the demurrer be overruled, and that the defendants have twenty days from December 16, 1942, in which to serve their answer, if they so desire.
Thereafter, on December 29, 1942, the defendants presented to the district court an ex parte application verified by plaintiffs' attorney to the effect that the defendant desired, and intended to and will appeal to the supreme court from the order overruling the demurrer, and requested that the trial court grant an order staying proceedings during the pendency of the appeal and fixing the amount and conditions of a stay bond "in conformity with Section 7832, Compiled Laws of 1913." Thereupon the trial court made an order that all proceedings, except entry of the order overruling the demurrer, be stayed for a period of ten days to enable the defendants to take and perfect their appeal; and that in event such appeal is taken and perfected within said period that a stay of all proceedings be had pending the appeal and for a period of twenty days after the remittitur is filed in the district court, during which time the defendants may answer the complaint if the order appealed from is affirmed or the appeal is dismissed, on the condition that the defendants furnish a statutory cost bond in the sum of $250 and an additional bond in the sum of $1,000, to be approved by the clerk of the district court, "conditioned that the above named defendants will pay to the plaintiff all costs, damages and penalties which the said Supreme Court may award to the plaintiffs in case the said Supreme Court shall find and determine that said appeal was not taken in good faith or was taken for the purposes of delay, not exceeding the aggregate of the amounts above mentioned; that if such bond or bonds be furnished then the stay of proceedings pending said appeal shall become effective upon service and filing thereof, and shall remain in full force and effect as heretofore ordered."
On the 5th day of January, 1943, the defendants duly took and perfected an appeal from the order overruling the demurrer by serving a copy of the notice of appeal and of the undertaking upon the attorneys of record for the plaintiffs and filing the same with proof of service with the clerk of the district court. The undertaking so served and filed embodied both the cost bond for $250 and the additional bond for $1,000, prescribed by the order of the court. On January 20, 1943, plaintiffs served upon the defendants a notice of "motion for default and for judgment." Such notice recited that the plaintiffs would, at the time and place designated in the notice, "ask the Honorable P. G. Swenson, Judge, to declare the defendant to be in default and for judgment as prayed for in the complaint, or for such other and further relief as may be proper."
Defendants appeared and objected to consideration of the motion. The trial court denied the motion and filed a memorandum opinion wherein he expressed the view that he had no power or authority to make an order granting plaintiffs a judgment by default after the appeal to the supreme court had been perfected. Thereafter plaintiffs applied to this court for a writ to compel the district court to hear and determine plaintiffs' motion for judgment and for default; or for an order quashing and setting aside the order of stay of proceedings and directing the district court to hear and determine plaintiffs' motion, and for other appropriate relief.
Plaintiffs' application is predicated upon the proposition that the laws of this state do not authorize the granting of a stay of proceedings and the fixing of the amount and conditions of a stay bond except upon notice to the adverse party; that under Section 7836, C.L.1913, the plaintiffs were entitled to notice of, and opportunity to be heard on, the application for stay of proceedings pending the appeal and the amount and conditions of any stay bond that might be required; that inasmuch as the defendants failed to give plaintiffs the required notice, the order to stay proceedings was made improvidently, and is at least voidable, and that inasmuch as the defendants were not entitled to have such order to stay proceedings entered it was the duty of the trial court to annul the order and declare the defendants to be in default and render judgment for the plaintiffs; or if the appeal has operated to deprive the district court of jurisdiction to take such action, that then this court should set aside the order of the district court granting a stay of proceedings for the same reasons, and remand the case to the district court with directions to hear and determine the motion for default and for judgment.
Our statutes make provision for the stay of execution or performance of a judgment or order pending appeal. C.L.1913, §§ 7825-7840. The conditions on which a stay may be had are not uniform, but are somewhat variant and the conditions are made dependent upon the nature of the decision sought to be reviewed on the appeal. As to some types of judgments the right to a stay is absolute, and the amount and conditions of the stay bond are fixed by the statute. C.L.1913, § 7825. As to judgments involving other forms of relief, the conditions of the stay bond are prescribed by the statute, but the amount of the bond is left for determination by the court. C.L.1913, §§ 7826-7831.
As to orders (such as an order overruling a demurrer to a complaint Devereaux v. Katz, 22 N.D. 351, 133 N.W. 553), our statutes (C.L.1913, § 7832), provide: "When the appeal is from an order the execution or...
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