Opinion
December 6, 1940 —
January 7, 1941.
MOTION for an injunctional order during the pendency of an appeal. Motion denied.
Harvey C. Hartwig, B. F. Saltzstein, and Chester J. Niebler, all of Milwaukee, for the appellants.
Vincent D. Hennessey of Milwaukee, for the respondent.
The appellants, B. E. Nickoll and wife, filed a petition in this court as basis for a motion for an order to restrain the circuit court for Milwaukee county from entering judgment dismissing appellants' complaint in an action commenced by them in that court against the North Avenue State Bank for the purpose of enjoining the enforcement of a judgment entered on September 13, 1934, in a prior action for the recovery of $18,819.27 by the bank from B. E. Nickoll and wife and other defendants. In connection with commencing the later action, appellants obtained an ex parte preliminary injunctional order, upon filing a bond in the penal sum of $250, enjoining the enforcement of the judgment entered against them in the prior action. The bank demurred to appellants' original and an amended complaint in the later action, and the court sustained each demurrer on the ground that the facts alleged in the complaints were insufficient to constitute a cause of action. In the order sustaining the first demurrer the court granted leave to plaintiffs to file an amended complaint. In sustaining the second demurrer the court ordered, on October 18, 1940, that the bank have judgment thereon and that leave to plaintiffs to again amend their complaint be withheld unless, within ten days after service of notice of entry of the order, they make application for such leave "accompanied by the tender of a pleading sufficient to withstand demurrer and a showing sufficient in law" that they "are entitled to such leave to amend." Instead of so applying, appellants filed a customary notice of appeal and cost bond in the sum of $250 on October 26, 1940, and had the record transmitted to this court on that day without making any application in that connection to the circuit court for a stay of proceedings or to have it fix the conditions and amount of a bond to be filed as a condition for such a stay. Upon the expiration of the ten days allowed by the court's order for the tender of a second amended complaint, plaintiffs were ordered to show cause in the circuit court why judgment dismissing their amended complaint with costs should not be entered forthwith and why the bank should not have such further relief as may be just and equitable. Upon a hearing pursuant to this order to show cause the circuit court announced it would grant the bank's motion, but the matter was adjourned to November 15, 1940, to allow appellants to apply to that court to fix the terms of a stay bond. Instead of doing that, appellants obtained an order directing the bank to show cause in the circuit court why the bank should not be restrained from having judgment entered on the order sustaining its demurrer and why, in the alternative, such other and just terms should not be set down by the court staying and restraining the entry of such judgment pending the determination of the appeal taken by appellants. After a further hearing the circuit court ordered, on November 28, 1940, (1) that the defendant's motion for judgment dismissing the complaint with costs and vacating the injunction pendente lite be and is granted unless plaintiffs serve and file by December 18, 1940, an undertaking in the sum of $27,000 to the effect that if the order sustaining the bank's demurrer is affirmed on appeal the appellants will pay the amount owing on the judgment entered on September 13, 1934, in favor of the bank against the appellants and others; (2) that unless such undertaking was so filed, appellants' motion for the stay of the entry of such judgment and also their alternative motion for fixing the terms to obtain such stay be and are denied; (3) but that if appellants serve and file an undertaking in the sum of $27,000, as ordered by the court, then and in that event the entry of the judgment and the vacation of the injunction pendente lite shall be stayed pending the determination of appellants' appeal from the order sustaining the bank's demurrer. The appellants have neither served or filed an undertaking under the provisions of the circuit court's order of November 28, 1940, nor have they taken an appeal from that order. Instead they moved, in the proceedings pending here on their appeal from the circuit court's order of October 18, 1940, for an order restraining that court from entering judgment dismissing the complaint.
The appellants, B. E. Nockoll and wife, contend, upon their motion in this court for an order restraining the circuit court from entering judgment dismissing their amended complaint with costs, that the circuit court had no jurisdiction to enter such an order after the transmission of the record by this court on October 26, 1940, pursuant to appellants' appeal from the order of October 18, 1940, sustaining the demurrer filed by the North Avenue State Bank to appellants' amended complaint and ordering judgment thereon.
Appellants' contention cannot be sustained. As this court said in Milwaukee E. C. Mfg. Corp. v. Feil Mfg. Co. 201 Wis. 494, 498, 230 N.W. 607, —
"After an appeal is taken the powers of both the trial and the appellate courts are determined by the statutes which regulate such appeals."
Inasmuch as the appeal in the case at bar is but from an intermediate order, which provides that the bank's demurrer to the complaint be sustained and that it have judgment thereon, the following provisions in sec. 274.24, Stats., are applicable, to wit:
"When the appeal is from an order the execution or performance thereof or obedience thereto shall not be delayed except upon compliance, with such conditions as the court or the presiding judge thereof shall direct, and when so required an undertaking shall be executed on the part of the appellant, by at least two sureties, in such sum and to such effect as the court or the presiding judge thereof shall direct; such effect shall be directed in accordance with the nature of the order appealed from, corresponding to the foregoing provisions in respect to appeals from judgments, where applicable, and such provision shall be made in all cases as shall properly protect the respondent; and 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."
Under the last clause in this statute there is clearly vested in the trial court discretionary power in respect to the granting of a stay of proceedings on appeal from such an intermediate order as the appellants appealed from in this case, and the appeal itself could not operate to stay proceedings unless the court or presiding judge thereof "so specially ordered." Because of the absence of such an order, there continued applicable the provisions in the first clause of sec. 274.24, Stats., that "the execution or performance" of the order appealed from "or obedience thereto shall not be delayed." Consequently, there continued to be vested in the circuit court jurisdiction to proceed in relation to the further execution or performance of its order which had not been stayed. In passing upon a defendant's contentions under analogous circumstances, that the circuit court was without jurisdiction, after entering an order overruling defendant's demurrer from which he appealed, to proceed in the action pending the appeal by entering an interlocutory judgment, this court said in State ex rel. Pabst Brewing Co. v. Kotecki, 164 Wis. 69, 71, 159 N.W. 583, —
"The inquiry now presented is, Was the circuit court justified in proceeding in the action in circuit court during the time the case was pending in the supreme court on such former appeal? The order embraced in the former appeal denied defendant's motion to quash the writ and his demurrer thereto, and further ordered `that defendant have twenty days within which to plead over to the said relation and alternative writ of mandamus.' This is manifestly such an order as is contemplated by sec. 3060, Stats. [now sec. 274.24]. . . . An appeal from an order overruling a demurrer does not stay proceedings without an order of the court."
In Jones v. Providence Washington Ins. Co. 151 Wis. 274, 278, 138 N.W. 1005, the court said, —
". . . it has been recognized for many years that there is a qualified jurisdiction after appeal still remaining in the circuit court which may be called into activity by permission of this court. It may be said further that nowhere do the appeal statutes say expressly or by fair implication that the trial court entirely loses jurisdiction of an action after appeal. The implications are rather the other way. An appeal is fully perfected by the giving of the notice and bond for costs, but further proceedings are not stayed in the trial court unless an undertaking to stay them be given. Even when this last named undertaking is given the effect is to stay action on the judgment or order appealed from; and the court is at liberty to proceed `upon any other matter included in the action not affected by' such judgment or order. Sec. 3066, Stats. (1898). So it is clear that jurisdiction in a qualified sense at least remains in the trial court subject to the stay of proceedings imposed in aid of the appeal."
It follows that appellants' motion must be denied.
By the Court. — Motion denied with $25 costs.