Hill v. Gates County

Marshall, J. The theory upon which this motion is presented is that, because appellants are prosecuting their appeal in good íaith and are willing to comply with any order the court may make to protect respondents in the event of a decision in their favor, the doing of the things complained of pending the appeal should be restrained as a matter of right. Reliance is placed on Janesville v. Janesville W. Co. 89 Wis. 159. This language was there used: “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.” That has often been referred to under circumstances such as those we have now to deal with, but it has never been supposed here to state a correct rule except as applied to facts similar to those before the court at the time it was uttered. Yiewed in the abstract, it must be unhesitatingly condemned; otherwise the discretionary power of the court would be entirely denied in such matters. To show that an application for a stay of proceedings in a cause pending an appeal is addressed to such power, in the absence of a statute creating an absolute right to a stay, we need but refer to the written law. While this court has inherent power to stay proceedings in a cause in a court of primary jurisdiction pending an appeal from some order there entered, and to place restraint upon the parties to the appeal so as to render the final result of the litigation, effective, the proper place, ordinarily, to apply for such relief in the first instance is in the trial court. The practice there is regulated by sec. 3060, Stats. 1898, in the following language: “No appeal from an intermediate order before judgment shall stay proceedings' unless the court or the presiding judge thereof shall, in his discretion, so specially order.” Circumstances may exist leaving no room for the exercise of judicial discretion in such a matter, other than in favor [486] of the party applying for the stay or restraint. In such a case it may well be said that the application should be granted rather as a matter of fight than as a favor. That was the situation in the Janesville Case. There the appellant, without a stay of proceedings in its favor, was reasonably certain to suffer great and irreparable damage in case it finally recovered. A probability existed that such a recovery would occur; and the interests of the adverse party in any event could be readily protected by security which the appellant was able and willing to give. Under those circumstances the refusal of the trial court to preserve the status quo pending the appeal was deemed a clear abuse of discretionary power. This court corrected the error, using the language to which we have referred. For all similar situations it states a correct rule of practice. Valley I. W. Mfg. Co. v. Goodrick, 103 Wis. 436. But the idea, that because of the mere fact of the existence of an honest controversy involved in an appeal, and willingness of the appellant to give security to protect the respondent, regardless of how baseless the claim of the former may be, and notwithstanding the judgment of the court of primary jurisdiction as to whether a stay should be granted under the circumstances, this court must listen favorably to an application for a stay, is manifestly wrong. As before indicated, the proper place to first apply for a stay of proceedings pending an appeal to this court is in the trial court. That was done in this case and resulted adversely to appellants. Under such circumstances a second application made to this court in effect calls for a review of the discretionary actidn of the lower court, to be decided substantially the same as if the review thereof were by direct appeal. That is, the subject should be left where the trial court left it, unless such court clearly abused its discretion. In reaching the conclusion, the merits of the appeal may properly be looked into for the purpose of determining [487] whether questions are involved worthy of serious judicial consideration. Where a case appears to be entirely destitute of merit, manifestly, restraint upon the conduct of the adverse party should not be granted. To call for the exercise of discretionary power in favor of the applicant for a stay in a case like this, there should not only be an honest controversy and a good-faith prosecution of the appeal, but there should be reasonable ground for believing that there is merit in the appeal and that the trial court abused its discretionary power in refusing to grant a stay. We are unable to conclude that all of these essentials are present to support the application before us, and therefore it must be denied. By the Oourt.— The motion is denied, with ten dollars costs. On February 20, 1902, the- appeal was dismissed by stipulation.