Reitan v. Goebel

Gileillan, C. J.

The condition of the bond for a stay, upon an appeal to this court from an order, is conditioned “to pay the costs of said appeal, and the damages sustained by the respondent in consequence thereof, if said order, or any part thereof, is affirmed, or said appeal dismissed, and abide and satisfy the judgment or order which the appellate court may give therein.” Gen. St. 1878, c. 86, § 10.

In Erickson v. Elder, 34 Minn. 370, (25 N. W. Rep. 804,) which was an appeal from an order directing the payment of money, this court held that a judgment of affirmance in this court was in effect a judgment or order of this court that the appellant shall pay the money directed to be paid by the order appealed from. That decision cannot apply to the case of an appeal from an order which does not direct or. require of the appellant to do anything, and the affirmance of which here does not require him to do anything, as is the nature of an order denying a new trial. A verdict does not require of a party, nor mate it his duty, to do anything. It is only the judgment that has that effect. When a motion for a new trial is denied, all that the party making it can do is to wait till judgment is entered against him. The payment of the judgment that may be entered after the new trial is denied, is not within the condition of the stay-bond on an appeal from the order denying it, unless the benefit of it is lost to the respondent in consequence of the appeal and stay, when such loss will be damages sustained in consequence thereof, and, as such, come within the condition.

Judgment reversed.