State v. Carlson

• Citation: 157 N.W. 657,37 S.D. 231
• Decision Date: 01 May 1916
• Docket Number: 3999
• Parties: STATE OF SOUTH DAKOTA, Plaintiff, v. CARLSON et al, Defendants.
• Court: Supreme Court of South Dakota

37 S.D. 231, 157 N.W. 657 (1916)

STATE OF SOUTH DAKOTA,

Plaintiff,

v. CARLSON et al,

Defendants.

South Dakota Supreme Court

Original proceeding

#3999

R. A. Dunham, G. F. Sherwood

Attorneys for plaintiff.

Hanten & Hanten, Perrett F. Gault

Attorneys for defendants.

Opinion filed May 1, 1916

WHITING, J.

This is an original proceeding in this court. It is an application, under the provisions of section 457, C. C. P., for an order fixing the amount of an undertaking on appeal for the purpose of staying the enforcement of the judgment of a trial court. The application is based upon a showing that the trial court has refused and neglected to fix the amount of a stay undertaking upon an appeal to this court which the defendants desire to take. In the case of the above title, a civil action pending in the circuit court of the Third judicial circuit within and for Clark county, a judgment was entered on March 14, 1916, declaring certain premises in the town of Vienna and the business of selling intoxicating liquors at retail therein to be a public and common nuisance; directing the sheriff to abate such nuisance by removing from such premises all spirituous, malt, brewed, fermented, or vinous liquors, unless the defendants caused the same to be done within three days; restraining the defendants, their agents, servants, etc., from permitting or allowing in or upon said premises any such liquors, and from selling or offering for sale therein any of such liquors; enjoining and prohibiting defendants perpetually from continuing or engaging in any business requiring the payment of a license under the provisions of article 6, c. 27, Pol. Code, as amended, and for costs.

It will be noticed that some of the provisions of such judgment are mandatory or affirmative in nature, while others are prohibitive or negative. The applicants contend that they have a right to give a bond on appeal, and that the effect of such bond will be, not only to stay the mandatory provisions of such judgment, but also to suspend the prohibitory provisions thereof. It must be conceded that, under the decisions of practically every court in our land, the prohibitive provisions of an injunctional judgment cannot be suspended by an appeal, at least without some order to that effect. State v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L.R.A. (N.S.) 554, 109 Am. St. Rep. 862; 4 Ann. Cas. 229, and authorities cited in notes 4 Ann. Cas. 231. In Lindsay v. Dist. Court, 75 Iowa 509, 39 N.W. 817, a case on all fours with this one so far as the nature of the judgment is concerned, the court said:

"It will be observed that the validity or effect of the judgment is in no manner affected by the appeal. It remains in full force, but process thereon is suspended until the appeal is determined. The judgment cannot be enforced by process, but a different rule prevails if the judgment is self-enforcing. Jayne v. Drorbaugh, 63 Iowa, 711, 17 N.W. 433. In the case at bar the nuisance cannot be abated until the appeal is determined. The effect of the supersedeas is to preserve the existing state of the matter, whatever it may be. It amounts to a suspension; and the relief obtained thereby is of a negative, and not of an affirmative, character. The injunction remains in full force, and the appeal and supersedeas do not affirm or give the party enjoined the right to violate it. If so, then, where a person is enjoined from committing waste on real estate, he may, pending an appeal, do irreparable injury to the estate; as when he is enjoined from removing heirlooms, or destroying them, which possibly have little or no money value. So, too, when one is enjoined from polluting a stream of water, thereby endangering the health of large numbers of people. In such cases the terms, conditions of, and liability on the supersedeas bond do not afford any adequate relief or indemnity, and certainly this is so in the case at bar."

But the applicants contend that, owing to the peculiar wording of section 451, C. C. P., the rule is different in this state. Such section reads:

"If the judgment appealed from direct the abatement or restraint of the continuance of a nuisance, either public or private, the execution of the judgment shall not be stayed by the appeal unless an undertaking be entered into on the part of the appellant, by at least two sureties, in such sum as the court, or presiding judge thereof, shall elect, to the effect that the appellant will pay all damages which the opposite party may sustain by the continuance of such nuisance."

We can find nothing in such section applying to prohibitive injunctions; in so far as a judgment may "direct the abatement or restraint of the continuance of a nuisance" it is affirmative or mandatory, and is not self-executing. But it has been suggested that this section should be construed exactly as section 12, C. 20, Laws 1887, would have been construed. Tracing the history of such former section, there is disclosed an unauthorized change by the compilers of the 1887 Compiled Laws. See C. L. § 5225. It is suggested that it was the legislative intent that our present section should be construed exactly as that section would have been. We can see no merit in this contention. If there was any ambiguity in the present section, we might be justified in examining its predecessors to the end that we might determine the intention of those enacting such present section. But there is no ambiguity in the section at it now reads, and its construction cannot be controlled by the wording of such former sections.

With the prohibitive provisions of this injunction in full force, little, if any, damage can result from a stay of the other provisions thereof. The amount of the stay undertaking upon appeal is therefore fixed at the sum of $500, with sureties (or a surety company) to be approved by the judge of the trial court. The restraining order heretofore issued by this court is continued in force for a period of ten days to allow time for applicants to prepare, have approved, serve, and file such stay undertaking upon appeal.

GATES, J. (dissenting).

Our statute upon appeals from the circuit court to the Supreme Court was taken from Wisconsin in 1887. So far as I have been able to ascertain, the only other states that have a section of statute corresponding with section 451, C. C. P., are Wisconsin and North Dakota. That section reads as follows:

"If the judgment appealed from direct the abatement, or restraint of the continuance of a nuisance, either public or private, the execution of the judgment shall not be stayed by the appeal unless an undertaking be entered into on the part of the appellant, by at least two sureties, in such sum as the court, or presiding judge thereof, shall direct, to the effect that the appellant will pay all damages which the opposite party may sustain by the continuance of such nuisance."

So far as the language of that section concerns the fixing of the amount of the undertaking, it is similar to sections 447, 449, 450, and 452, which sections, together with the one under consideration, correspond with sections 3054, 3056, 3057, 3058, and 3059, Wisconsin Statutes. 1898, and with sections 7826, 7828, 7829, 7830, and 7831, North Dakota Comp. L. 1913. Under the Wisconsin statute (section 3059) the Supreme Court of that state held in Northwestern Mutual Life Ins. Co. v. Park Hotel Co., 37 Wis. 125, that the stay was a matter of right, and that mandamus would lie to compel the trial court to fix the amount of an undertaking. In City of Janesville v. Janesville Water Co., 89 Wis. 159, 61 N.W. 770, the court said:

"Appeals from orders and judgments, in the cases allowed by law, are a matter of right; and within the limitation that the appeal is taken and prosecuted in good faith, and that the party asking it gives the reasonable security required for that purpose, a stay of proceedings during the pendency of an appeal is quite of course, and really a matter of right, without which an appeal allowed by law would often prove fruitless and the appellate jurisdiction of the court be found inadequate to the ends of justice and the proper protection of the rights of parties during the pendency of the appeal."

This language was criticized in Hill v. Gates Co., 112 Wis. 482, 88 N.W. 463, as being too sweeping, and the court therein held that it should be limited to facts similar to those before the court at the time it was uttered, and accordingly in the latter case it was held that under section 3060, Wisconsin Statutes 1898 (corresponding with our section 453, C. C. P.), the right to stay was discretionary.

In Harris v. Snyder, 113 Wis. 451, 89 N.W. 660, there was a question as to whether or not the amount of the...