Waterman v. Raymond , 5 Wis. 185 ( 1856 )

Per Curiam.

Undoubtedly this court-has tbe power to order a stay of proceedings in tbe court below touching any matter of appeal to this court. And we .have no doubt that a justice of this court has tbe power in vacation- to make a provisional order for such stay of proceedings, to enable tbe party to make or renew, if need be, a similar motion in term.

In such, cases,-however, tbe justice ought to look into tbe nature and circumstances of tbe order, appealed from. Much is necessarily left to tbe discretion of tbe judge who made tbe order, but tbe appeal removes the subject -matter, and all matters connected therewith, to this court,- and is thenceforth within its control. No fixed rule can be laid down, but tbe action of tbe justice or court must depend upon tbe equities of the particular application, and where great or irreparable injury is liable to result from tbe prosecution of tbe cause, after an- appeal from an interlocutory order, tbe power ought to be exercised. On tbe other band, every impediment -to tbe progress of a suit to its final determination ought -to be removed, so far as it may be consistent with tbe just rights of tbe parties.

In this case we do not see that any material injury can result to tbe parties, in case tbe suit goes' on, except tbe costs of tbe proceedings, which will, of course, be at tbe haáard of tbe party so proceeding.

Tbe order is vacated.