State ex rel. Pfeiffer v. Taylor

By the Court, Downer, J. This is an application for a rule to show cause why a writ of mandamus should not issue to the judge of the fourth judicial circuit, commanding him to vacate an order made by him at chambers in the case of Pfeiffer against The Fond du Lac Rail Road Company, staying proceedings under a.previous order made in the same case by the circuit court of Sheboygan county appointing a receiver of the property of [567] the railroad corporation. Due notice of the motion to stay proceedings was given. The defendant had previously appealed from the order appointing a receiver, to this ■ court, and given the usual undertaking to pay costs and damages; and was required as a condition of a stay of proceedings to give another bond or undertaking to pay the judgment mentioned in the order appealed from. The circuit j udge clearly had the power to make the order to stay proceedings, at chambers. Sec. 29, ch. 140, R. S.; Laws of 1860, ch. 264, sec. 18. Nor has he in any way abused the power given to him, hut has amply protected the judgment creditor against loss by requiring ample security to pay the j udgment if the order appealed from shall be affirmed. But if the order staying proceedings had been wrongly or erroneously made, the remedy is not by mandamus. That writ cannot be made to perform the office or take the place of a writ of error or appeal. The motion is denied.