Edwin M. Bonde v. William Stern and B. G

The plaintiffs seek a review of certain rulings of the district court incident to and arising out of a stay of proceedings on appeal from an order overruling a demurrer to the complaint. The facts necessary to an understanding of the controversy are as follows: The plaintiffs brought action to recover money judgment against the defendants. The defendants demurred to the complaint on the grounds that several causes of action have been improperly united and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer came on for argument and on December 18, 1942, the trial court entered an order that the demurrer be overruled, and that the defendants have twenty days from December 16, 1942, in which to serve their answer, if they so desire. Thereafter, on December 29, 1942, the defendants presented to the district court an ex parte application verified by plaintiffs' attorney to the effect that the defendant desired, and intended to and will appeal to the supreme court from the order overruling the demurrer, and requested that the trial court grant an order staying proceedings during the pendency of the appeal and fixing the amount and conditions of a stay bond ""in conformity with 7832, Compiled Laws of 1913."" Thereupon the trial court made an order that all proceedings, except entry of the order overruling the demurrer, be stayed for a period of ten days to enable the defendants to take and perfect their appeal; and that in event such appeal is taken and perfected within said period that a stay of all proceedings be had pending the appeal and for a period of twenty days after the remittitur is filed in the district court, during which time the defendants may answer the complaint if the order appealed from is affirmed or the appeal is dismissed, on the condition that the defendants furnish a statutory cost bond in the sum of $250 and an additional bond in the sum of $1,000, to be approved by the clerk of the district court, ""conditioned that the above named defendants will pay to the plaintiff all costs, damages and penalties which the said supreme court may award to the plaintiffs in case the said supreme court shall find and determine that said appeal was not taken in good faith or was taken for the purposes of delay, not exceeding the aggregate of the amounts above mentioned; that if such bond or bonds be furnished then the stay of proceedings pending said appeal shall become effective upon service and filing thereof, and shall remain in full force and effect as heretofore ordered.""