Ackerman v. Horicon Iron Man. Co.

By the Court, Paine, J.

The defendant demurred to the complaint, and the demurrer was overruled, with leave to answer within twenty days. The defendant appealed from the order overruling the demurrer, but did not obtain any order staying proceedings until after the expiration of the time given to answer. After the expiration of that time, however, such an order was duly obtained and served, before any judgment was- entered by the plaintiff. Still, the plaintiff moved for judgment and obtained it while the order staying proceedings was in full force. This was irregular. The fact that the plaintiff was in a position to enter a judgment before proceedings were stayed, does not authorize him to enter it afterwards. If a party neglects to move as soon as be might, be does it at the risk of having bis proceedings stopped exactly in the condition in which be leaves them. He cannot go on after proceedings are stayed, because be might have done so before. Suppose a plaintiff was in a position to issue execution, but bad not done so. If bis proceedings are then stayed by a proper order, could be still go on and issue bis execution because be might have done it before? Clearly not. And it is just as clear that he could not proceed to enter a judgment. He must get rid of the order staying proceedings before be can go any farther.

The judgment is reversed, with costs, and the cause remanded for further proceedings.