Schafer v. Dist. Court of Nelson Cnty.

Decision Date11 May 1911
Citation21 N.D. 476,131 N.W. 240
PartiesSCHAFER v. DISTRICT COURT OF NELSON COUNTY et al.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Certiorari does not lie, when there is an appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

After this court has acquired jurisdiction of a cause by appeal, it has inherent power on proper application to enter any appropriate order therein, including the power to vacate a stay of execution pending the determination of such appeal ordered by the trial court upon an inappropriate or insufficient undertaking, unless appellant furnishes the necessary undertaking to secure the stay of execution granted.

Petition of William G. Schafer for writ of certiorari to the District Court of Nelson County, First Judicial District; Charles F. Templeton, Judge, and R. J. Roberts, Clerk. Motion to quash writ granted.H. A. Libby, for the motion. Frich & Kelly, opposed.

SPALDING, J.

On the 6th day of April, 1911, on the affidavit of George D. Kelly, attorney for the plaintiff, in an action entitled William G. Schafer, Plaintiff, v. Pontus Olson and Clinton D. Lord, Defendants,” this court issued its writ commanding the judge and clerk of the district court of Nelson county to certify and send to this court a transcript of the record and proceedings touching the granting of a stay of execution therein, that the same might be reviewed by this court. On the 17th day of April the parties appeared and the defendants submitted a motion to quash the writ, on the ground that certiorari is not the proper remedy, but that an appeal lies from the order of the district court fixing the amount of the undertaking on appeal and its approval of the latter. Return was also made as commanded by the writ.

[1] 1. Certiorari does not lie when there is an appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy. Section 7810, R. C. 1905; St. Paul, Minneapolis & Manitoba R. Co. v. Blakemore et al., 17 N. D. 67, 114 N. W. 730.

2. It is unnecessary to determine whether an appeal lies from an order of the district court fixing the amount of an undertaking on appeal and staying execution pending the determination of the appeal. We are inclined to think, on the authority of St. Paul, Minneapolis & Manitoba R. Co. v. Blakemore et al., 17 N. D. 67, 114 N. W. 730, that it is appealable. We are, however, convinced that the applicant has another and speedier remedy, one far more speedy than the remedy by appeal, even if the order is appealable. The court in this case gave personal judgment against the defendant Olson in favor of the plaintiff for a definite amount, and then adjudged that the plaintiff had a vendor's lien on certain described real estate as security therefor, and directed the sale thereof and the execution and delivery of a certificate of sale, and deed if not redeemed in one year; the decree being practically in the form frequently used in actions to foreclose mortgages.

[2] The court fixed the...

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5 cases
  • Baker v. Lenhart
    • United States
    • North Dakota Supreme Court
    • September 5, 1923
    ...See Lewis v. Gallup, 5 N. D. 384, 67 N. W. 137;St. Paul, M. & M. Ry. Co. v. Blakemore, 17 N. D. 67, 114 N. W. 730;Schafer v. District Court, 21 N. D. 476, 131 N. W. 240;State ex rel. Brunette v. Pollock, 35 N. D. 430, 160 N. W. 511. In construing section 8445, supra, in St. Paul, M. & M. Ry......
  • Nelson v. Ecklund
    • United States
    • North Dakota Supreme Court
    • December 31, 1938
    ... ... MABEL MYRTLE ECKLUND, Defendant No. 6460Supreme Court of North DakotaDecember 31, 1938 ...           ... Syllabus by ... remedy. Schafer v. District Ct. 21 N.D. 476, 131 ... N.W. 240 ... [283 N.W. 275] ... ...
  • Sell v. Davis
    • United States
    • North Dakota Supreme Court
    • July 6, 1931
    ...think that the defendant is right in this contention. See State ex rel. Noggle v. Crawford, 24 N. D. 8, 138 N. W. 2;Schafer v. District Court, 21 N. D. 476, 131 N. W. 240; Towle v. Bradley, supra; 11 C. J. 113, et seq. The plaintiff insists, however, that, under the statute, section 8445, q......
  • Schafer v. The District Court of the First Judicial District
    • United States
    • North Dakota Supreme Court
    • May 11, 1911
    ... ... SCHAFER v. THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT WITHIN AND FOR NELSON COUNTY, NORTH DAKOTA, Charles F. Templeton, as Judge of Said District, and R. J. Roberts, as Clerk ... ...
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