Northwestern Mutual Life Insurance v. Park Hotel Co.

RvAN, U- J.

That part of the judgment of the court below, from which (this appeal is prosecuted, takes from the mortgagor the colleatio.n ¡and administration of the income of the mortgaged premises, pending the sale and the statutory right of redemption, and undertakes to make a final disposition of it. *131 The right of the mortgagor, and other parties to the action interested, to take the appeal, is too plain for discussion.

And the right of appeal as plainly carries with it the right to stay proceedings on that part of the judgment, pending the appeal. “ In every judicial system, there are inferior and superior tribunals, and the law gives a right of appeal from the decision of the inferior, in order that their mistakes may be corrected, and the party not be finally concluded by their judgment. The appeal carries the suit one step onward towards that final adjudication which the law has provided for. It removes the matter in controversy to the higher tribunal, to be tried over there. And this very idea and object of an appeal seem entirely repugnant to the idea that the party, notwithstanding the appeal, may go on in the court below and execute the order or judgment appealed from.” Hudson v. Smith, 9 Wis., 122 . Our statute of appeals goes upon that policy, and undertakes' to provide for a stay of proceedings upon all appeals to this court from judgments of the circuit courts, upon compliance with prescribed terms. Indeed it is held, in the case just quoted, that, in the absence of statutory provision, the appeal itself would operate as a supersedeas ; and that the ■ statute only prescribes conditions on which it shall do so.

After providing in detail for stay of proceedings upon appeal from divers enumerated judgments, most common in practice, the second clause of sec. 33 of the appeal act, as arranged in Taylor’s Statutes, provides the terms of stay of proceedings on appeals from judgments directing the doing of any other particular act or thing, when no express provision has been made by the act for the undertaking to be given. This was evidently designed to provide for the protection of respondents in all appeals not previously enumerated. And the terms used were obviously intended to include, and we think do include, all judgments in civil actions not coming within the classes specifically covered by previous provisions. Certainly the ap *132 pointment of a receiver, and his collection and administration of the income of the mortgaged premises, are particular acts or things directed by the judgment in this case. It would be strange indeed that the statute should provide for a stay on appeal from an interlocutory order appointing a receiver as a provisional remedy (Noonan v. Orton, 28 Wis., 386 ; Hudson v. Smith, supra), and omit such provision on appeal frdm a final judgment appointing a receiver as part of a final remedy.

All this appears to us to be so very plain that we are at a loss to account for the refusal of the court below to fix the amount of the proper undertaking to stay proceedings on appeal from that part of the judgment now appealed from, oron appeal from the whole judgmentj including that part. Any impression that a circuit court can render any judgment in any civil action, which cannot be reviewed in this court on appeal, and the execution of which cannot be stayed pending the appeal, is a grave error. And it is an error no less grave, to hold that such a refusal of a circuit court can impair the right of appeal from its judgments or baffle the appellate jurisdiction of this court.

The appellant, in such a case, may delay his appeal and apply to this court for mandamus to the circuit court, to make an order directing the sum in which he shall give an undertaking to stay proceedings pending his appeal. The delay of such a course might, in many cases, defeat the object of the statute and the right of the appellant; and he is not left to so inadequate a remedy. After the appeal has been taken and the cause is in this court, it may well be doubted whether mandamus would lie to the court below, and whether an undertaking in the court below would be effectual. But a party aggrieved by a judgment of a circuit court, which refuses to fix the amount of an undertaking to stay proceedings pending his appeal, can perfect his appeal and apply to this court for stay of proceedings on the judgment. The constitution and laws of the state have not left this court impotent to protect its suitors ■or to enforce its jurisdiction.

*133 When any statute imposes tbe duty on the circuit court to direct tbe amount of security to be given, on appeal to this court, to stay proceedings in that court, and the circuit court neglects or refuses to perform that duty, it is an essential incident of the appellate jurisdiction of this court, after appeal taken, to order the stay on the proper statutory terms. At this day, .this ought not to be an open question in this court, and it is not. Waterman v. Raymond, 5 Wis., 185; Hudson v. Smith, supra. See also Russell v. Bartlett, 9 Wis., 556 ; Helden v. Helden, id., 557 ; Parish v. Hager, 15 id., 532 ; Smith v. R. R. Co., 19 id., 89; Gelpeke v. R. R. Co., 11 id., 454.

The right of appeal, and of staying proceedings pending appeal, being thus secured to parties against whom judgments have gone in the circuit courts, it is the further object of the statute and duty of the court to secure parties recovering such judgments against loss resulting from stay of proceedings. In ordinary judgments between plaintiff and defendant, this is readily done. But in this case there appears to be a difficulty, arising from its peculiarity.

Upon the argument of this motion, much was said of the merits of this appeal, of which we can properly take no notice now. Much was also said of peculiar hardships to the defendant on whose motion that part of the judgment carried up by this appeal was granted in the court below, of any stay of proceedings upon it. It is quite possible that the stay of proceedings may work inconvenience and embarrassment to him. It was perhaps impossible for the statute to make provision for all such peculiar contingencies ; and it is certainly impossible for us to administer it otherwise than as we find it. We cannot deny to the appellants the stay of proceedings to which they are bylaw entitled. We can only make the best provision which the statute permits for the protection of their codefendant in whose behalf the judgment appealed from was rendered.

The statutory undertaking on appeal is not required to run to any designated payee. The undertaking under the second *134 clause of section 33, which we can require on this appeal, is to pay all damages which the opposite party may sustain.

This is an appeal by defendants in the court below; and 'prima facie the plaintiff in the court below would be the opposite party of the statute, and the respondent in this court. But it appears by the record that the plaintiff below did not seek or consent to that part of the judgment involved in this appeal. It appears to have been added to the judgment sought by the plaintiff, on the motion of a defendant who had answered and put in a counterclaim for some such relief. The other defendants made default.

This condition of the record suggests some grave questions. If so much of the judgment as this appeal brings to this court, is a judgment in which the plaintiff below is not concerned, and is to be considered an adjudication of equities between co-defendants, questions arise, whether it be such a judgment.as can be properly rendered on the counterclaim of a defendant, and especially against a codefendant who did not appear and answer ; and whether a cross complaint was necessary to sustain such a judgment (1 Yan Santvoord’s Eq., 223-228); and whether, the judgment being one between codefendants, the defendant obtaining it is the opposite party of the statute, and the respondent in this court; and, if not, whether' a motion here is necessary or proper to constitute him respondent in this court.

On these questions we intimate no opinion; but they necessarily suggested themselves to us, in considering the right of the moving defendant to make this motion, and the security which the statute gives us power to afford him against loss by stay of proceedings on that part of the judgment rendered in his favor, in case of its affirmance. Any difficulty there may be, appears to us to be in the record, rather than in the statute. If he should prove to be the opposite party, within the meaning of the statute, he should have and will have the full statutory *135 security. If he should not prove so, no order -which we have power now to make would avail him.

Reserving, as far as we can, all opinion on the questions arising, until the hearing of the appeal, and making the statutory provision now for the opposite party, we shall, in the meantime, as far as we may be able, give to the' defendant who obtained the judgment before us, all the rights of practice of a respondent in this court. We do not see how we can now do more.

So much of the ex parte order of the 16th instant as directs the condition of the undertaking, does not follow the statute, and is manifestly inapplicable to the case. The condition of the undertaking must be framed under the second clause of sec. 83. The order must be so far modified; and the appellants must give a new undertaking in compliance with the modified order.

It was objected to the order of the 16th instant, that it should have provided for a stay from its date only, and should not have directed the receiver to restore anything which he might have received or taken under his appointment. The order, in this respect, follows the order in Hudson v. Smith, and we think is entirely correct. If the refusal of the court below to permit the appellants to stay proceedings deprived them of anything, it was our duty to replace them in the position they would have been in, but for the refusal.

By the Court. — Ordered accordingly.