St. Paul & Duluth Railroad v. Village of Hinckley

Dickinson, J. This respondent Saunders was the attorney for the defendant, the village of Hinckley, in an action pending in the district court. The cause was tried, and the court made its findings of fact therein, and directed judgment to he entered in favor of the defendant, to the effect, among other things, that a temporary injunction which had been granted in favor of the plaintiff should be dissolved. The plaintiff made a motion for a new trial, which was refused, and an appeal from the order of refusal was taken to this court, and the stay bond provided in such cases by 1878 G. S. ch. 86, § 10, was filed. Thereafter this respondent caused judgment to be entered in accordance with the previous direction of the District Court, dissolving the temporary injunction. Then the street commissioner of the village proceeded to do what had been prohibited by the injunction, — the opening or doing of work upon premises which appear to be claimed to have been a public street. The respondent Saunders, as well as the street commissioner, were then required to show cause before this court why they should not be punished for contempt. As to the latter the proceeding was not pressed. The judgment, though erroneous, was not void, as must be held under our decisions in State v. Young, 44 Minn. 76, (46 N. W. Rep. 204,) and Briggs v. Shea, 48 Minn. 218, (50 N. W. Rep. 1037.) Hence the judgment was probably effectual as a justification of the conduct of the street commissioner. The respondent Saunders contends that the appeal and the statutory stay bond did not operate to prevent the entry of judgment in accordance with the previous direction of the court. We hold to the contrary, in accordance with what we understand' to have been the view which the courts and the profession generally have always talcen of the law as it now stands; that is, that an appeal from an order granting or refusing a new trial, and the filing of the bond prescribed by 1878 G. S. ch. 86, § 10, effectually suspends the right to proceed to the entry of judgment, although, as has been considered [105] in the cases cited above, such stay or suspension affects the regularity of the proceedings rather than the jurisdiction of the court. The decision in Briggs v. Shea, supra, rests upon the assumption, as a matter of course, that such an appeal and stay bond suspend the right to enter judgment. This is also recognized in the opinion in Reitan v. Goebel, 35 Minn. 384, 385, (29 N. W. Rep. 6.) But, while we suppose that this has been generally understood to be the effect of the statute, what is stated in the opinion in Exley v. Berryhill, 37 Minn. 182, (33 N. W. Rep. 567,) as the reason for that decision, certainly affords some justification to this respondent for his conclusion that the appeal, with a stay bond, from an order refusing a new trial, did-not suspend his right to enter the judgment; and for this reason it is considered that the respondent should not be adjudged guilty of a contempt in having so done. Whether the case of Exley v. Berryhill, supra, as to the effect of the appeal as a stay of proceedings, was rightly decided, and whether the particulars in which that case differed from this would justify different conclusions in the two cases, we do not now decide. Our conclusion upon this point is such that it is unnecessary to consider some other questions presented at the hearing, and the order upon which the respondent was called before us is discharged. Vanderburgh, J., did not take part. (Opinion published 54 N. W. Rep. 940.)