Boynton v. Church

• Decision Date: 08 July 1910
• Citation: 148 Iowa 197,127 N.W. 210
• Parties: BOYNTON v. CHURCH, JUDGE.
• Court: Iowa Supreme Court

148 Iowa 197

127 N.W. 210

BOYNTON

v.CHURCH, JUDGE.

Supreme Court of Iowa.

July 8, 1910.

Proceedings in certiorari. Petition dismissed.

W. C. Saul, for plaintiff.

L. H. Salinger, for defendant.

LADD, J.

Upon entering the decree in the district court in Boynton v. Salinger, 126 N. W. 369, the defendant as presiding judge caused to be inserted the following clause: “Process upon this decree is to be suspended, and no sale is to take place pending appeal, provided that appeal be perfected within 30 days after the entry of this decree.” Thereafter a motion to expunge the clause from the decree was overruled. It is contended in this proceeding that in inserting said clause the trial court exceeded its jurisdiction. The effect of the order was upon appeal to supersede the judgment without bond. That the ruling was erroneous must be conceded. Carroll v. Reddington, 7 Iowa, 386; section 4128, Code. An appeal does not operate to stay proceedings on the judgment appealed from save upon the execution of a supersedeas bond. Section 4128, Code. “If a party has perfected his appeal and the clerk of the lower court refuses to approve the bond or requires an excessive penalty, or unjust or improper conditions, he may apply to the district court or judge thereof who shall fix the amount and conditions of the bond and approve the same. Pending the application, the judge may, by written order, recall and stay all proceedings under the order or judgment appealed from until the decision of the application.” Section 4132, Code. The following section authorizes the district court rendering the judgment or order appealed from on motion to discharge the bond for defect in substance or insufficiency in security. Section 4134 provides that: “If the judgment or order is for the payment of money, the penalty shall be in at least twice the amount of the judgment and costs. If not for the payment of money, the condition shall be to save the appellee harmless from the consequences of taking the appeal, but in no case shall the penalty be less than one hundred dollars.”

These sections clearly authorize the district court to supervise the execution of supersedeas bonds, and, power to do so having been conferred, the exercise thereof is not without jurisdiction, even though the order or ruling in a particular case may have been erroneous. In staying process on the decree in violation of the statute, the district court erred; but, as the order was within its...