State v. Carlson

157 N.W. 657, 37 S.D. 231, 1916 S.D. LEXIS 39

• Court: South Dakota Supreme Court
• Decided: May 1, 1916
• Docket: File No. 3999
• Status: Published

Opinions

WHITING, J.

This is an 'original proceeding in 'this court. It is an application, under the provisions of section. 457, C. C. P., for an order fixing the amount of an undertaking on appeal for the purpose of staying the enforcement of the judgment of a trial court. The application i® based upon a showing that the trial court has refused and neglected to fix the amount 'of a stay undertaking upon an appeal to this court which the defendants desire to take. In the case of the above title, a civil action pending in the circuit court of the Third judicial circuit within and for Clark county, a judgment was entered on March 14, 1916, declaring certain premises in the town of Vienna and the business of selling intoxicating liquors at 'retail therein to be' a public and common nuisance; directing the sheriff to abate such nuisance by removing from: such premises all spirituous, malt, brewed, fermented, or vinous liquors, unless the defendants caused the same ito be done within three days; restraining the defendants, their agents, servants1, etc., from, permitting or allowing in or upon said premises any such- liquors, and from selling or offering for sale therein any of such liquors; enjoining and prohibiting defendants- perpetually from continuing or engaging in any business requiring the payment of a license under the provisions of article 6, .c. 27, Pol. Code, as amended; and for ■costs.

It will he noticed that some of -the provisions of such judgment are mandatory or affirmative in nature, while others are prohibitive or negative. The applicants contend that they have a right to give a bond on appeal, and that the effect of such bond will he, not only to stay the mandatory provisions of such judgment, but also to. suspend the prohibitory provisions thereof. It must be conceded that, under the decisions of practically every court in our land, the prohibitive provisions of an injunotional judgment cannot be suspended by an appeal, at least without some order to that effect. State v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862; 4 Ann. Cas. 229, and authorities cited in notes 4 Ann. Cas. 231. In Lindsay v. Dist. Court, 75 Iowa, 509, 39 N. W. 817, a case on all fours with this one so far as the -nature of the judgment is concerned, the -court said:

“It will 'be observed -that the validity or -effect of the judg-.meat is in no manner affected by tíre -appeal. It remains in fiill force, but process thereon is suspended until -the a-ppeal is determined. Tlte judgment cannot be enforced) by process, but a different rule prevails if the judgment is self-enforcing. Jayne v. Dronbaugh, 63 Iowa, 711, 17 N. W. 433. In the case at bar the nuisance cannot be abated. until the appeal is determined. The effect of the supersedeas is to preserve the existing state of the matter, whatever it,may be. It amounts to a suspension; and the relief obtained thereby is of a negative, and not of an affirmative, character. The injunction remains in full force, and the appeal and1 supersedeas dio not affirm or give the party enjoined the right to violate it. If so, then, where a person is enjoined from committing waste on- real estate, he may, pending an appeal, do- irreparable injury to- the estate; as when he is enjoined from removing heirlooms, or destroying them, which possibly have -little- or no money value. So, too, when one is enjoined from polluting -a stream of water, thereby endangering the health of large numbers of people. In such, -cases the terms, conditions of, and liability on the -supersedeas bond do not afford any adequate relief, or indemnhy, and1 certainly this is so- in the case at bar.”

[1] But -the applicants contend that, owing to the peculiar wording of section 451, C. C. P., the rule isi different -in' this state. Such- section reads :

“If the judgment appealed from direct the abatement or restraint of the -continuance of a nuisance, either -public or private, the execution of the judgment sh-a-ll not be staj^ed 'by the appeal unless an undertaking be -entered into -on the part of -the- appellant, by at least two- sureties', in -such sum as the court, or presiding judge thereof, shall -direct, to- the effect that the appellant- will p-ay all damages which the opposite party may sustain by the -continuance -of such nuisance.”

[2] We -can find nothing in -such, section applying to prohibitive injunctions; in so far as a judgment may “direct'the abatement -®-r restraint of the continuance of -a nuisance” it is affirmative • or • -mandatory, and- is not self-executing. But it has been suggested- that this- section should be construed exactly as section 12, c. 20, Laws 1887, would have ¡been construed Tracing the history of such former section, there is disclosed an unauthorized change by the compiler's of .the 1887 Compiled Laws. See C. L. § 522.5. It is suggested that it was. the legislative intent that our present section 'should be construed 'exactly as that section would have been. We can see no merit in this contention. If there was any ambiguity in the .present section, we might be justified in examining its predecessors to the end that we might 'determine the intention of those enacting such present section. But there is no ambiguity in the section at it now reads, and its construction cannot 'be controlled by the - wording' of such former sections.

With the prohibitive -provisions of this injunction in full force, little, if any, damage can result-from a stay of the other provisions thereof. The amount of the stay undertaking upon appeal is therefore fixed at the sum of $500, w-ith sureties (or -a surety -company) to be approved by the judge of the trial court. Tire restraining order heretofore issued 'by this court is continued in force for a -period of ten days to allow time for applicants to- prepare, have- -approved, -serve, and file s-u-ch stay undertaking upon appeal.