Felt v. Amidon
| Decision Date | 16 December 1879 |
| Citation | 3 N.W. 825,48 Wis. 66 |
| Parties | FELT v. AMIDON and others |
| Court | Wisconsin Supreme Court |
Argued December 2, 1879.
APPEAL from the Circuit Court for Dodge County.
This court having reversed a judgment recovered by the plaintiff against the defendants in this action, and awarded costs to defendants (43 Wis. 467), the circuit court, after the cause was remitted, made an order, on defendants' motion staying proceedings in the action on plaintiff's part until such costs should be paid. Plaintiff appealed from the order.
Appeal dismissed.
The cause was submitted, on the brief of E. P. Smith and H. W Sawyer for the appellant, and that of H. W. Lander and J. B Hays for the respondent.
For the appellant it was contended, 1. That the order was appealable. Tubbs v. Doll, 15 Wis. 640; Dole v Northrop, 19 Wis. 249; Abbott v. Johnson, 47 Wis. 239. The record shows that the plaintiff is poor and unable to pay the costs; and under these circumstances the order in effect determines the action and prevents a judgment from which an appeal might be taken. Besides, when an order staying proceedings is made in a case where the court has no authority to grant it, the order must be appealable. If an action ex contractu were stayed until plaintiff's note to defendant should be paid, the order would certainly be appealable, defendant's proper remedy being by counterclaim and not by a stay. In Flanders v. Merrimac, 44 Wis. 621, an order conditioning a change of venue upon payment of costs was held appealable; and one conditioning plaintiff's right to prosecute his action at all upon payment of costs must also be appealable. Cram v. Bradford, 4 Abb. Pr., 193; Green v. Wood, 6 Abb. Pr. 277; La Farge v. La Farge Ins. Co., 14 How. Pr., 26; Abbott v. Johnson, 47 Wis. 239. Any act which has the effect to defeat or embarrass plaintiff's remedy, is in conflict with the principle and whole policy of the common law. Lock Co. v. Railroad Co., 10 Am. Law. Reg., N. S., 260-63; Smith v. N. Y. Cent. R. R. Co., 43 Barb., 225. 2. That, as defendants had judgment for their costs, and had issued execution therefor, their object in procuring the stay must have been either to bar plaintiff's action or to use the order as a proceeding supplemental to execution; that a proceeding by that method for that purpose is wholly unauthorized; and that the only way to review it was by appeal. Sudlow v. Knox, 7 Abb. Pr., N. S., 411. 3. That as the supreme court had granted a new trial absolutely, and not conditioned upon payment of the costs of that court, the circuit court had no right to deny such new trial. The supreme court awarded an execution to collect the costs; and it has exclusive jurisdiction over its own judgments and costs awarded therein, and competent power to enforce such judgments (R. S., secs. 2407, 2953); and the circuit court has no control over such judgments. R. S., sec. 2420; 63 Barb., 417; and see Platto v. Deuster, 22 Wis. 485; Endter v. Lennon, 46 Wis. 300. 4. That the effect of the order was to deny plaintiff's right to have his remedy "promptly and without delay," and compel him to purchase justice, in contravention of sec. 9, art. I of the state constitution. The fact that a stay of proceedings may be granted in one action until another involving the same question is decided, has no bearing here, since in such cases the question is left to be settled without delay in one of the actions. Whittaker v. Janesville, 33 Wis. 76; Durkee v. Janesville, 28 Wis. 464; Oatman v. Bond, 15 Wis. 20. 5. That the court has no power in either awarding or collecting costs, except as specially provided by statute. Re Jackman, 26 Wis. 144; Abbott v. Johnson, supra. In New York, when causes have been stayed until costs already adjudged were paid, no question of plaintiff's ability to pay them entered into the case; and a poor plaintiff was entitled to sue in forma pauperis, free from costs. A stay of proceedings in that state until costs of a former cause or trial are paid, is based upon the presumption that the proceedings are vexatious. Ex parte Stone, 3 Cow., 380; Lawrence v. Dickenson, 2 Cow. 580; Demarest v. Wynkoop, 2 Johns. Ch., 561; Kerr v. Davis, 7 Paige, 53; Pinney v. Johnson, 2 Wend., 623. And this view has been adopted and emphasized in this state. McIntosh v. Hoben, 11 Wis. 400. 6. That it appeared clearly from the record that since the commencement of the action defendants had disposed of their unexempt property, to prevent the collection of any judgment which plaintiff might recover herein; and that under such circumstances they were not entitled to any favor at the hands of the court, and they should be left to offset the costs in question against the judgment which plaintiff may recover.
For the respondents it was argued, 1. That the order was not appealable under subd. 5, sec. 3069, R. S., as involving the merits or affecting a substantial right. Rahn v. Gunnison, 12 Wis. 528; Kewaunee Co. v. Decker, 28 Wis. 669; Johnston v. Reiley, 24 Wis. 494; Parmalee v. Wheeler, 32 Wis. 429; Noble v. Strachan, Wis. 314; Will of Kneeland, 40 Wis. 344; Blesch v. Railway Co., 44 Wis. 593. 2. That the order was right, and within the sound discretion of the court. McWilliams v. Bannister, 42 Wis. 301; McIntosh v. Hoben, 11 Wis. 400; Jackson v. Schauber, 4 Wend., 216; Kentish v. Tatham, 6 Hill 372. No constitutional objection lies against the order which would not be equally valid against the power to impose costs at all, and especially against the power granted by law to both the circuit courts and justices' courts, to require plaintiffs in certain cases to give security for future possible costs before proceeding with their actions at all. R. S., secs. 2942, 3782; Campbell v. Railway Co., 23 Wis. 490.
This is an appeal from an order of the circuit court staying proceedings on the part of the plaintiff and appellant until he pays the costs awarded to the respondents by this court upon the reversal of the judgment recovered against them in this action. It is insisted by the learned counsel for the respondents, that the order is not appealable under the statute.
The right to appeal from an order of the circuit court to this court is given and limited by section 3069, R. S. 1878, which section is substantially section 10, ch. 264, Laws of 1860, 2 Tay. Stats., 1635.
If this order be appealable at all under the provisions of said section, it must be under the first subdivision, which reads as follows: "An order affecting a substantial right in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken."
It is insisted by the learned counsel for the appellant, that the order appealed from comes within the spirit, if not within the letter, of this provision, and that the order does in effect determine the action, and prevents a judgment. It is possible that the order may have that effect, but it does not by its terms. The stay is only granted until the plaintiff shall pay a certain amount of costs due to the respondent. If the money be paid, the stay of the plaintiff's proceedings ceases, and he may then proceed to judgment. We think this section refers to such orders, and such only, as by their very nature determine the action or prevent a judgment; and does not cover orders which simply stay the proceedings of the plaintiff until he shall perform some act or pay a sum of money. An order which stayed proceedings until an act should be performed which it was impossible to perform, or which required the performance of an unlawful act, might be construed to be an order which determined the action or prevented a judgment, and as therefore within the provision above quoted, and appealable; but when an order stays proceedings until an act shall be performed which is not illegal, and which is such as can ordinarily be performed, such stay cannot be said to determine the action or prevent a judgment.
An order staying proceedings in an action, not amounting to a perpetual stay, is generally within the discretion of the court in which the action is pending; and, when granted for a cause which is a good ground for a stay, in the discretion of the court granting it, such order is not appealable. This court has so held in the following cases: Johnston, Ex'r, v. Reiley, 24 Wis. 494; Parmalee v. Wheeler, 32 Wis. 429; Noble v. Strachan, 32 Wis. 314; McLeod v. Bertschy, 30 Wis. 324; In re the Will of Kneeland, 40 Wis. 344; McDonald v. The Green Bay & Miss. Canal Co., 42 Wis. 335; Blesch v. Railroad Co., 44 Wis. 593, 595. These cases seem to have settled this question. But it is insisted that if the facts upon which the order staying proceedings is based are such that it is evident that the court granting the stay had no right to grant the same, or that the granting of the same was an abuse of discretion, then this court ought to take jurisdiction, upon appeal from such order, and reverse the same. This does not seem to have been the view taken by this court in the cases above cited.
It seems that the proper method to be pursued, in the first instance, by the party complaining of the stay, when he deems the stay unreasonable, is to move the court granting the same either to vacate or modify the same. If, upon such motion the court should arbitrarily or unreasonably refuse to modify or vacate the order, some of the cases above cited intimate that an appeal from such last order would be sustained, probably upon the ground that such order would involve the merits of the action, or some part thereof, within the meaning of subdivision 4 of said section 3069. Such appears to have been the opinion of Justice LYON, as intimated in Noble v. Straehan, supra. In the case of In re the...
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