Burge v. Burns , 1 Morris 287 ( 1844 )

Per Curiam,

Mason, Chief Justice.

This was a motion to dismiss, on the ground that the decree appealed from was less than twenty-five dollars. One act passed in 1839, provides for such appeals only in cases where the decree appealed from is final and shall amount, exclusive of costs, to the sum of twenty-five dollars. [Laws of first session, page 378.] And the act passed the same year, provides for appeals in all cases. [Laws of Iowa, page 138.] This discrepancy between the two statutes is put to rest by the organic act, the ninth section of which provides, among other things, that “ writs of error, bills of exceptions and appeals in chancery causes, shall be allowed in all cases from the final decisions of the said District Courts to the Supreme Court, under such regulations as may be required by law.” Under this power to regulate, the legislature cannot prohibit; the right of appeal from the District to the Supreme Court “ in all cases ” is sacred. Any act of the legislature restricting that right to a certain class of cases, is therefore invalid. The motion to dismiss will therefore be overruled.

Per Curiam, Mason, Chief Justice.—The proceedings in the court below were not in accordance with the practice in chancery cases. Where the answer, if true, is an insufficient defence, the proper course is to set the cause for hearing on bill and answer, which is tantamount to a demurrer in an action at law.

But inasmuch as no objection seems to have been made to the course of proceeding below, we shall regard the case the same as though, instead of a demurrer to the answer, the equivalent measure had been adopted, and the cause been set for hearing on bill and answer. This is in substance, the case that was discussed and decided below and which has been brought up and argued here:

The question therefore, to be now considered, is whether the answer if true, presents such a case as to justify a dissolution of the injunction and a dismissal of the bill. That answer admits the obtaining of a judgment ; the stay of execution ; the sueing out of a writ of error before the expiration of said stay and the filing of a bond for a supersedeas which was all that was then necessary to obtain such supersedeas.— See laws of 1839-40, page 113. It further admits that after said supersedeas had been obtained in manner aforesaid, the plaintiff in the case ordered an execution to be issued against the said complainant and his security in the stay bond, given in the case as above set forth.

For the defendant it is contended that the writ of error and super-sedeas should not have prevented the issuing of an execution on the stay bond. The statute declares that every writ of error (where a proper bond shall have been given) shall operate as a supersedeas upon the judgment. How then could an execution issue upon the stay bond ; the very effect of which would be to carry the judgment into full effect ?

But it is urged that the writ of error should not have had the effect of a supersedeas in this case.

1. Because the original judgment had been by confession. Neither the bill nor the answer shows this to have been the case.

2. Because the stay bond, being declared by statute, a judgment confessed, operated as a release of errors. The fact that a judgment is by confession, does not prevent the suing out of a writ of error, nor the operation of a supersedeas. There may have been substantial irregularities and errors in obtaining that very judgment by confession, for which this court will feel bound to reverse it. A writ of error is a writ of right and by complying with certain prerequisites, the law then in force entitled the plaintiff in error to a supersedeas. Where such a writ has issued in pursuance of law, it must not be disobeyed on the ground that there had been a judgment by confession, and that consequently the plaintiff in error could not succeed in reversing the judgment. If he proceeds with a groundless case, he must abide the consequences which the law affixes to the prosecution of a writ of error for mere delay, but the defendant in error must pursue his legal remedy and not disregard a supersedeas which is given without qualification by statute.

Finally it is urged that the very suing out of the injunction operated as a release of all errors in the judgment at law ; such being the express declaration of thestatute. See laws of 1838-9, page 352. Thatstatute however, is not applicable to the present argument. It contémplales a case where the injunction is brought to enjoin proceedings at law, not those in violation of law.

In the present instance a supersedeas had issued to stay proceedings on the judgment below. The plaintiff in that judgment had however, disregarded this writ, and setting it at defiance, was proceeding to issue his execution and levy upon the defendant’s property. The injunction was issued, not to stay proceedings at law, but to stay proceedings contrary to law. Where a party is proceeding clearly in violation of law, no one can reasonably suppose that the very act by which those illegal proceedings are enjoined and restrained, sanctions and legalizes them. If such were the law, a party would only have to place a sham execution in the hands of the sheriff, and if the defendant therein should seek his remedy by an injunction, he would thereby legalize this outrageous act and cut himself off from all remedy; a proposition so monstrous as to need no refutation. Now an execution issued after the taking effect of a regular supersedeas, is no more legal than though it had no judgment at all for its basis.

' We think the court below therefore, decided correctly in sustaining the demurrer to the defendant’s answer, and the decree thereupon must be affirmed.